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Case Laws
Showing 441 to 460 of 938 Records
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2011 (8) TMI 943
Demand was confirmed by the original authority - Business Support Services or GTA services - It is not permissible for the first appellate authority to accept the appeal on the main grounds but to adopt altogether a new category, without there being consideration of the same by the original authority - there is no discussion and available views of the original adjudicating authority as to whether the services being provided by the appellants gets covered under the category of cargo handling services - ld. DR submits that whether the services being provided by the appellant are covered under one category or the other, the taxability of the services is not in doubt. As we have remanded the matter to the original adjudicating authority, he will look into the above aspects and decide the issue afresh - Stay petition and appeal gets disposed of
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2011 (8) TMI 942
Demand - Notification No. 12/2003-S.T - Revenue pleads that they have made out a case against the appellant finding that the appellant had collected certain amount for supply of study material/coaching to provide the commercial coaching meaningful and no Service Tax was paid thereon - Held that: coaching material has intimate connection with the commercial coaching provided by the appellant and the contents of the study material are relevant to the coaching to make the later fruitful and meaningful so that the enrolled candidates are benefited out of commercial coaching - there is no evidence to suggest that these coaching materials by any means enjoy exemption under law and not taxable - The notification relied upon by the appellant relates to works contract case whereas pure and simple commercial coaching cannot be called as works contract for the peculiar nature of the services involved being intellectual in nature - Appellant is directed to deposit Rs. 13 Lakh
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2011 (8) TMI 941
Provisional assessment - The grievance of the Petitioners is that - (i) No hearing was afforded to them by the Deputy Commissioner of Customs; (ii) No speaking order has been passed and (iii) Even the elementary principles of natural justice have therefore not been complied with - Merely because there was a special drive to clear a backlog of matters, that would afford no justification for the department not to comply with fundamental principles of natural justice - Held that: the impugned communication at Exhibit E and the consequent assessment orders, have to be set aside and a direction would have to be issued to the Deputy Commissioner of Customs to pass fresh orders finalizing the assessments after furnishing to the Petitioners an opportunity of being heard
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2011 (8) TMI 940
Goods Exported - Composition of Stainless Steel, Chromium 26% and Nickel 8.7% as per specification for grade ER 312 the required percentage in chromium 28-32% and Nickel 8 to 10.5% - Show Cause issued - Product did not conform to the specification claim for export thus DEEC Scheme denied and also to impose penalty under Section 114 - Held That:- It is on record that the Deputy Chief Chemist's laboratory did not have the facilities for determination of the various constituents of the export product. The lower appellate authority's finding that the test report is incomplete and hence cannot be relied upon cannot be faulted. In previous exports the products being of specification was agreed by department therefore respondent has to be given the benefit of doubt. Departmental appeal dismissed.
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2011 (8) TMI 939
Import of aluminium foils - Goverment imposed provisional safeguard duty - re-assessment of provisional duty under Notification 71/2009 - pending assessment appeal was filed - Commissioner set aside assessment and ordered refund of duty - Held That:- When safeguard duty on provisional basis , assessment also provisional - arguments of respondent no need for finalization of assessment does not stand. Further CA certificate are not conclusive to state that duty has not been passed, invoices required. Appeals pending assessment cannot be filed before Commissioner. Case referred back.
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2011 (8) TMI 938
Notification No. 82/92-C.E., dated 27-8-92 - Commissioner (Appeals) has held that in case of Advance Release Order No. 6/AM-2001, dated 17-4-2000 which was issued against the Advance Licence No. 081000274, dated 17-4-2000 clearances were governed by Not. No. 30/97-Cus., dated 1-4-97 - The status of advance release order is the same as advance licence. Therefore, supplies against advance release order had also to be on same terms, if domestic supply was to match imports - In view of the findings given by the Tribunal, the status of advance release order is the same as that of advance licence and Notification No. 30/97 and 82/92 both are to be read harmoniously, and, therefore, supply made against advance release order should be treated as eligible for exemption from additional duty of customs also - Appeal is dismissed
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2011 (8) TMI 937
Adjournment - cause list was issued yesterday evening and he saw the same today morning on the notice board he is not prepared for the cases - Assessee requested insufficient notice of few hrs. issuing cause list shall defeat the purpose of justice. Therefore, minimum 15 days’ notice is required for hearing - Held That:- They deserve fair and reasonable opportunity of hearing with sufficient notice. We are of the view that the respondents represented by all the three aforesaid counsels shall be heard from 5th September, 2011, continuously until hearing is completed.
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2011 (8) TMI 936
Provisional assessment - enhancement of transaction value is based on three invoices without relevant bills of entry and, therefore, it cannot be concluded that these invoices pertain to actual imports - Rule 5 of the Customs Valuation Rules, 1988 - adjudicating authority proceeded to determine the value under Rule 8 of the Customs Valuation Rules, 1988 - if the value is determined under Rule 8, which is the residual method of valuation, the basis for determination of value has to be clearly spelt out - If one goes by the three invoices relied upon by the department, it is noticed that the invoices are not in respect of contemporaneous imports - the goods mentioned in the invoices relied upon by the department has been shipped from different places such as Singapore, Hong Kong etc. and the quantities are also varying - Decided in favor of the assessee
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2011 (8) TMI 934
Notification No. 21/2002-Cus - The contention of the appellant is that the condition under the Exim Policy is only of technical nature and the appellant is entitled for release of the motorcycle - It is an admitted fact in the present case that the motorcycle has been imported from USA whereas the same has been manufactured in Japan - As per condition of the Exim Policy, as reproduced above, the condition is that the vehicle is to be imported from the country of manufacture - Appeal is dismissed
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2011 (8) TMI 933
CHA license issued in Delhi - Appellant filed form C to carry out their duties at Mumbai - Commissioner of Customs, Mumbai debar the CHA Licence of M/s International Shipping Agency - Held That:- in the case of Exel India Pvt Ltd vs Commissioner (2007 - TMI - 1856 - CESTAT, BANGALORE) Tribunal held that to suspend or revoke the CHA licence, the proceedings are to be initiated by the Commissioner of Customs who issued the licence. Therefore, the impugned order is not sustainable.
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2011 (8) TMI 932
Mis-declaration - Classification - appellants have contended that these codes like seal, score, gray are different names by ISRI and if the goods are not, seal they would fall under any other grade. Inasmuch as, all the grades are freely importable and attract the same rate of duty, no intention can be attributed to the appellant to mis-declare the goods as seal grade - They have also contended that at the very opinion that zinc dross is not of seal grade chemical examiner has not given any reasons as to why the same does not have the characteristics of seal grade - Chemical examiner’s report does not give any reason as to why zinc dross in question cannot be considered to be of seal grade. Secondly, it does not give further opinion has to under which category or grade the sample would fall - Decided in favor of the assessee
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2011 (8) TMI 931
An assessee under the Central Excise Act, 1954 suffered an adverse order dated 29-3-2007 passed by CCE(A), Jaipur in appeal No. 265 (HKS)CE/JPR-11/2007 - Revision petition before the central government - Notice of this petition was served upon the respondents i.e. Ministry of Finance and Commissioner of Excise - The need to remand has occasioned for the reason that admittedly during pendency of the revision petition before the Government, the petitioner by their letter dated 24-12-2009 (Annex. P/9) had submitted additional documents in relation to the proof of export of the material which was subject matter of the controversy - Held that: finding recorded by the revisional authority is based on non-consideration of the additional documents sent by the petitioner vide their letter dated 24-12-2007 - Decided in favor of the assessee by way of remand to revisional authority
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2011 (8) TMI 930
Notification No. 56/2002-C.E., dated 14-11-2002 - The exemption available under this notification is the amount of duty paid by the assessee other than the amount paid by utilization of Cenvat credit under the Cenvat Credit Rules, 2002 - In this case, the respondent on 11-12-2006 produced a certificate from the designated authority certifying that they have undertaken substantial expansion resulting in 25% increase in regular employment - In terms of para 3 of the Notification No. 56/2002-C.E., the exemption under this notification is also applicable to the existing units, which have undertaken substantial expansion by the way of increase in installed capacity by not less than 25% substantial expansion, resulting in not less than 25% increase in regular employment on or after 14-6-2002 - When the duty in respect of clearances made during whole of December 2006 was payable only in the next month and during December 2006, the respondent was eligible for benefit of Notification No. 56/2002-C.E., in our view the benefit of this exemption cannot be restricted only to the clearances made from 11-12-2006 - Decided in favor of the assessee
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2011 (8) TMI 929
Notification No. 108/95-C.E., dated 28-8-95 - As the certificate was not issued in the name of the assessees, the department was of the view that the conditions of the notification were not fulfilled and accordingly, issued two show cause notices both dated 19-11-2003 proposing recovery of duty of Rs. 53,03,047/- as result of denial of benefit of the notification was issued - The agreement clearly brings out that M/s. MFIL, to whom a contract had been awarded by the United Nations World Food Programme for supply of fortified biscuits to Afghanistan, had engaged the respondents to manufacture such biscuits and supplied them to the United Nations World Food Programme - the certificate issued by the project implementing authority under Notification No. 108/95 is not necessarily required to be in the name of supplier of the products used in the project, are directly applicable to the facts of the present case - Decided in favor of the assessee
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2011 (8) TMI 928
Chewing Tobacco - MRP based duty u/s 4A - Rule 34 of Standards of Weights and Measures (Packaged Commodities) Rules 1977 - Appellants say that the goods were sold by weight and only individual pouches were meant for retail sale and the multi piece packages were not meant for retail sale. - held that:- MRP is indicated for the multi-piece package was indicated on the multi-piece package showing the clear intention that such multi-piece package also was intended for retail sale. - So in the case before us the Appellant was required under law to declare MRP on the multi-piece package and the Appellant was doing so. Further this commodity was notified for levy of excise duty based on valuation as per section 4A of the Central Excise Act. Thus both the legal requirements for applying section 4A were satisfied and hence Central Excise duty should have been paid adopting the value as per section 4A.
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2011 (8) TMI 927
Stay - revenue neutrality - adjustment of the excess duty stated to have been paid for the period January 2006 to March 2006 towards short payment for the period from April 2005 and December 2005. - dispute about non-applicability of the principle of unjust enrichment. - assessee contended that the excess duty paid by the appellant being entitled for availing the credit and the payment of duty is by one unit whereas the availment of the credit is by another unit of the same appellants, the entire process is actually revenue neutrality. - held that:- merely because the assessee paid duty subsequent to the date even though the appellants are entitled for credit for such payment of duty that does not result in revenue neutrality. As such, payment of duty after the last due date for the same does not wipe out the liability to pay interest. Being so, unless it is shown that at the time of payment, the entire duty amount along with interest stood paid, the question of application of revenue neutrality cannot arise. In none of the decisions sought to be relied upon this aspect has been considered. Merely because the principle is stated to have been applicable that itself does not amount to laying down the law. - Appellant directed to pre-deposit 60%.
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2011 (8) TMI 926
Cenvat credit - On verification by the departmental officers it was found that the supplier did not have necessary infrastructure to manufacture and supply the goods and on that basis an alert notice was issued - The Cenvat credit has been denied and penalty has been imposed on the ground that the supplier did not have the infrastructure for manufacture of the goods - It also emerges that during the period supplier was a registered central excise assessee and was paying duty on the goods supposed to have been manufactured by them and there is no indication that the duty paid by the supplier was less than the Cenvat credit availed - The very fact that the supplier was in existence for 15 years, had availed Cenvat credit of more than Rs. 18 crores would show that the supplier did have some standing in the market - once it is held that there was no suppression or mis-declaration on the part of the appellants and no penalty is imposed on them, duty demand invoking extended period also cannot be sustained if challenged - Appeal is allowed
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2011 (8) TMI 925
Anti dumping duty 6(6) - hearing by one Designated authority and decision decision by another - In view of Automotive Tyre Manufacturers Association (2011 -TMI - 201474 - SUPREME COURT OF INDIA),new authority should have reheard the proceedings before giving its decision.
Power of Tribunal to remand back - time period to decide case - In view of BASF South East Asia Pte. Ltd. v. Designated Authority (2010 - TMI - 77631 - CESTAT, NEW DELHI), Deepak Fertilizers & Petrochem v. Designated Authority (2006 - TMI - 47777 - HIGH COURT OF DELHI)
no time-limit prescribed under the Act for the Tribunal to decide an appeal or to remand an appeal within the 18 months period, which is prescribed for completion of investigation by the DA under the Rules only.
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2011 (8) TMI 924
DEPB benefit - Misdeclaration of value - Circular No. 69/97-Cus., dated 8-12-1997 - whether the DEPB rate is to be applied on the PMV or the benefit should be capped at 50% of PMV which is what the Public Notice Issued by DGFT envisages - the public notice issued by DGFT should prevail over the circular of CBEC which is not very clear on the point whether the rate is to be applied on PMV or benefit is to be capped at 50% of PMV - When the adjudicating officer himself is confused about this, the exporter cannot be penalized for such discrepancy. No benefit that is accruing to the exporter on account of the mis-declaration comes out - Appeals are allowed
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2011 (8) TMI 923
Principal of Natural Justice - Anti Dumping Duties - Public hearing was held before one DA, final findings were by another DA - Held That :- In view of Automotive Tyre Manufacturers Association (ATMA) vs. Designated Authority (2011 - TMI - 201474 - SUPREME COURT OF INDIA ), we allow these appeals by remand to the DA for affording post-decisional hearing to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearing. The respondent-domestic industry and other interested parties, if any, shall also be allowed to participate in such post-decisional hearing.
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