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Showing 461 to 480 of 590 Records
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2011 (10) TMI 215
SSI Exemptions - Assessee factory located in rural areas - cleared branded goods sepeartely and paid duty -Show cause notice was issued that assessee wrongly included the value of branded goods and availed SSI benefits - Held - the assessee had never claimed this benefit - Revenue is trying to thrust upon the assessee that the branded goods manufactured were cleared without payment of duty - Revenue could not furnish any evidence or any certificate from the authorities during the relevant time, when the Show Cause Notice was issued. Decided in favour of Assessee.
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2011 (10) TMI 211
Notification 52/2003 - Assessee 100% EOU manufacturing agricultural tractors - Held that:- Where the assessee after importation but before clearance by custom officers got the addendum incorporated in LUT specifying "returnable racks as items eligible for duty exemption" shall be entitled to benefit of Notification.
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2011 (10) TMI 210
Valuations - Goods sold to Related Person - Held - Where in past year good were sold to at a lower price to independent buyers when compared with related person, in current year such valuation cannot be questioned when sold at lower price to related person as against Independent buyers.
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2011 (10) TMI 209
Levy of Service Tax on free after sale service - In view of of M/s.ASL Motors Pvt. Ltd. Vs. CCE,(2007 - TMI - 3419 - CESTAT, KOLKATA) - free after sale services are provided to boost the sale of the vehicles and the amounts are not being reimbursed by the manufacturers. Amount of free service formed part of dealer's margin and no extra amount is being paid to the dealer by the manufacturer of the vehicles. Thus Service Tax cannot be charged on free after sale services.
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2011 (10) TMI 207
Cenvat Credit - "Repair and Maintenance" Services on air-conditioning plant for the office space of the factory - Held that:- The air-conditioning of the office space and the repair and maintenance services availed for the same have nexus with the manufacturing business of the appellant, more so, when the definition of 'input service' specifically includes the 'Services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or office relating to such factory or premises.Air-conditioning of an office space not only increases the efficiency of the staff but may also be essential for the computer systems installed therein. - Decided in favour of assessee.
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2011 (10) TMI 206
Refund Claim of Cenvat - DTA converted into 100% EOU - Held that:- Rule 100H of Central excise after conversion into a 100% EOU, the appellants are not entitled to the MODVAT Scheme - CBEC Circular No. 77/99 is very clear in this regard and MODVAT credit if any lying in the balance of a DTA unit is liable to lapse after conversion into a 100% EOU.
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2011 (10) TMI 205
Unjust Enrichment - Refund credited to consumer welfare fund - Held that:- Invoices were stamped that duty has not been recovered. - Enquiry was conducted by the Assistant Commissioner from the customers and the customers disclosed that the goods were received on payment of appropriate duty. - During the argument, a specific query was made by the Bench regarding how the amounts in question are reflected in their books of account, the appellant failed to show any entries in respect of the amounts in question whether the same were shown as receivable. - appellant failed to show that burden of duty has not been passed on - refund cannot be given to him.
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2011 (10) TMI 201
Provisional Assessment - Assessee dealing in two categories of goods -With respect to certain items, the provisional value adopted was less than the final value arrived and resulted in short payment of duty of Rs.10,63,41 however in respect of other item provisional value has resulted in excess payment of Rs 1,77,20,157 thus net excess of 1,66,56,740. Department demanded interest of Rs 1,34,634 on short payment of Rs.10,63,41 - Held that:- In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration.Therefore demand of revenue is unjustified.
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2011 (10) TMI 198
DTA supplied goods to SEZ - Revenue demanded 10% of value of the exempted goods supplied to SEZ - Held - In view of Section 51 of the SEZ Act, the supplies made by DTA units to SEZ units will amount to export for the purpose of all export benefits. The benefit shall include benefits available in respect of exports provided by exception to Rule 6 of Cenvat Credit Rules, 2004.Thus appeal of revenue was turned down.
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2011 (10) TMI 197
Eligibility of Exemption Notification 38/96 - whether the import of Chinese raw silk is entitled to the benefit of notification No. 38/96, irrespective of the fact as to whether the importer is a border resident or not. - goods were imported in another person name - Held that - Advance ruling pronounced on 29.08.2006 deals with the scope of Notification - that there is no condition except limiting the import of such goods from China through a specified land customs station and along the specified land routes, for getting the benefit of exemption of duty under notification. It was held that the exemption notification has no actual user condition after the specified goods are imported. Thus decided in favour of aasessee.
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2011 (10) TMI 196
Cenvat Credit - Assessee 100% EOU - Revenue denied refund claim as supplies to 100% EOUs are only deemed exports and provisions of Rule 5 are not applicable - Held - In view of CCE Vs. Shilpa Copper Wire Industries (2010 -TMI - 205858 - GUJARAT HIGH COURT) case decided in favour of assessee.
Time limit stipulated under Section 11B of the Central Excise Act is not applicable in the case of refund claim under Rule 5 of the Cenvat Credit Rules, 2004
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2011 (10) TMI 195
Royalty paid to foreign software Supplier- deduction of tax at source- Double Tax Avoidance Agreement- Held that:- Assessee imported software products from USA, France and Sweden. No tax was deducted at source in respect of such payments on the ground that software imported was not customized and therefore payment does not constitute royalty neither under I.T. Act nor under provisions of DTA agreement therby not liable to tax. It is held that right to make a copy of the software and use it for internal business by making copy of the same and storing the same in the hard disk of the designated computer and taking back up copy would itself amount to copyright work under Section 14(1) of the Copyright Act and licence is granted to use the software by making copies, which work, but for the licence granted would have constituted infringement of copyright and licencee is in possession of the legal copy of the software under the licence and payment made in that regard would constitute 'royalty' for imparting of any information concerning technical, industrial, commercial or scientific knowledge, experience or skill as per clause (iv) of Explanation 2 to Section 9(1)(vi) of the Act. In any view of the matter, in view of the provisions of Section 90 of the Act, agreements with foreign countries DTAA would override the provisions of the Act. In view of the said finding, it is clear that there is obligation on the part of the respondents to deduct tax at source under Section 195 of the Act. Further, it is stated that obligation to deduct TDS u/s 195 arises only when there is a sum chargeable under the Act and not all payments are subject to TDS. Decided against the aseessee.
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2011 (10) TMI 194
FBT - Audio Music system, Television set, watches etc... to be treated as "Sales Promotion and Publicity" Expenses and taxed at 20% or be treated as "Gift" and taxed at 50% - Held - Gift is anything without consideration but in the present case various items were given in terms of trade scheme depending upon sales targets achieved by stockiest/ dealers. CBDT circular which are not in confirmity with statute cannot be relied upon. A specific provision has been made in regard to sales promotion and publicity expenses then it will override the general provision relating to gift. Therefore, expenditure on sales promotion including publicity would fall within the scope of the specific provision in clause (D) and not clause (O). We therefore, hold that the expenditure on gifts could not be treated as trade scheme or for promotion of company's product as per clause O of sub-section 2 of section 115WB. Appeal was allowed for statistical purpose.
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2011 (10) TMI 193
Charitable Trust- voluntary accumulations - trust was established by the State Government for the purpose of improvement of Karnal City within Municipal limits- accumulation of income u/s 11(2) for general public utility- income tax paid for earlier assessment years(then status'local authority'), & TDS on FDRs now claimed as application of income- Held that:- Additional condition by way of section 11(2) is intended only to apply in respect of accumulation in excess of 15 per cent and not to accumulation upto 15 per cent under section 11(1)(a) of the Act. The income applied u/s 11(1)(a) and accumulated for specified purpose to be spent in specified period u/s11(2) taken together should 85% in order to claim 100% exemption of the income derived by the assessee. See Bagri Foundation's case(2010 - TMI - 77103 - Delhi High Court) - there is short fall in application/accumulation of income of Rs. 72,535/- (12,09,91,502.40 -12,09,18,967). The amount of Rs. 72,535/- has neither been applied nor accumulated. Therefore, the amount of Rs. 72,535/- will be liable to be taxed. However, the purpose of accumulation to be specified should be a concrete one, an itemized purpose or a purpose instrumental to the implementation of its object or objects. It is not for all the objects of the trust, but where heavy amount is needed for meeting the cost of project falling within the objects of the trust or institution, accumulation of income to meet the cost of such project is permitted. Hence, the charitable trust cannot list all its objects as purposes for accumulation of income under section 11(2). See DIT [Exemption] v. Trustees of Singhania Charitable Trust (1991 - TMI- 21454 - Calcutta High Court). In present case, since A.O. has allowed accumulation for general public utility u/s 11(2) and it is not in appeal before Tribunal hence, allowed.Similarly, since CIT(A) has allowed payment of income taxes as application of income and the Revenue is not in appeal before Tribunal against the same hence claim of the assessee is allowed. - Decided partly in favor of the assessee.
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2011 (10) TMI 190
Organizing short term courses relating to forestry management, environment - Held that - there is no activity of the appellant, which can be called rendering advice, directly or indirectly, in connection with management of any organization. Just imparting training in certain areas to the Officers of certain organizations does not amount to rendering the service of "Management Consultancy" either directly or indirectly to that organization. Thus Service Tax cannot be charged.
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2011 (10) TMI 189
Admissibility of Credit on Input - Refund of accumulated credit - 100% EOU converted into DTA - refund claim rejected on the ground that finished product Peanut Butter was totally exempted from of duty - Held - when the duty was paid on input, the appellant was still a 100% EOU and because it was 100% EOU, the appellant was eligible for CENVAT Credit if duty was paid on packing material, input etc. Computation of period of limitation of one year - held that:- period of 1 year for the purpose of limitation under Section 11B of Central Excise Act, 1944 has to be counted from the date on which final conclusion is reached that the credit cannot be utilized. Condition of export under bond - Held that:- A 100% EOU has to export the goods under bond only, since if it is cleared to DTA unit, Peanut Butter attracted duty. - the condition that the goods should have been exported under bond is fulfilled. - Refund allowed.
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2011 (10) TMI 183
Issues:
- Penalty imposed under Rule 25 of the Central Excise Rules, 2002 without duty liability.
Analysis:
The appeal was directed against a penalty of Rs.10,000 imposed on the appellant under Rule 25 of the Central Excise Rules, 2002. The demand of duty was initially raised for goods cleared for export without certain required documents. However, the original authority dropped the demand after verifying the shipping bill and bank realization certificate as proof of export, considering the omission as a procedural lapse. The appellate authority imposed the penalty based on a Tribunal decision, holding the party liable under Rule 25 for contravention of export conditions. The appellant argued that no penalty should be imposed without duty liability and that they were not given a fair opportunity to defend against the penalty. The appellant also contended that since the basic export requirements were met, the penalty under Rule 25 was unjustified.
Upon review, the judge set aside the penalty. It was noted that the show-cause notice proposed a penalty under Section 11AC read with Rule 25, but no penalty under Section 11AC was imposed as the conditions for such penalty were not met. The judge emphasized that since the goods were exported with basic documents and the omission was considered a procedural lapse, no penalty under Rule 25 should be imposed. The decision to set aside the penalty was based on the lack of grounds for penalty imposition and the acceptance of the procedural lapse by the authorities. The judge allowed the appeal, overturning the penalty imposed under Rule 25.
In conclusion, the judgment focused on the lack of duty liability and the procedural lapse in exporting goods without certain documents. The judge emphasized that without meeting the conditions for penalty under Section 11AC, no penalty under Rule 25 should be imposed. The decision to set aside the penalty was based on the appellant meeting the basic export requirements and the acceptance of the procedural lapse as a non-punishable offense.
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2011 (10) TMI 181
Validity of power of Commissioner (Appeals) to remand the matter back to Adjudicating Authority – matter relates to classification of goods – Held that:- Without going into the legal question as to whether the Commissioner (Appeals) has powers or not and by taking into consideration the fact that the Tribunal can itself remand the matter, we find it fit to direct the original Adjudicating Authority to re-decide the issue of classification after obtaining the Chartered Engineer's opinion.
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2011 (10) TMI 179
Penalty - payment of service before issuance of show cause notice - application of sub-section (3) of section 73 of the Finance Act - Held That:- once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a wilful mistake. Sub-section (4) of section 73 expressly provide the benefit of sub-section (3) of section 73 is not attracted to a case falling under sub-section (4). Therefore, the contention of the assessee that he is not liable to pay penalty as he has paid the differential duty with interest before issue of show-cause notice is unsustainable. Quantum of penalty - assessee paid differential duty and the interest payable thereon even before the institution of the proceedings ie. before issue of show cause notice. - Penalty restricted to 25% only.
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2011 (10) TMI 177
Deemed Dividend 2(22)(e) - Assessee has 69% shareholding in a Co. advanced loan to a concern in which he has 25% shares - Held That:- Before us, it is a case of a partnership firm which is not a shareholder rather Shri Purshottam Makhija who is a partner of assessee firm is shareholder of the company from whom loan was received. - To attract the provisions of Section 2(22)(e), the payment must be to a person who is registered holder of shares. - In the I.T. Act, 1961, the word "shareholder" in Section 2(22)(e) is followed by the words "being a person who is a beneficial owner of shares". This expression only qualifies the word "shareholder" and does not in any way alter the position that the shareholder has to be a registered holder not substitutes the requirement of merely holding a beneficial interest in shares without being a registered holder of shares. If a person is a registered shareholder but not the beneficial shareholder then the provisions of Section 2(22)(e) will not apply. Similarly, if a person is a beneficial shareholder but not a registered shareholder then also the first limb of provision of Section 2(22)(e) will not apply. In the present appeal, the assessee company is not a registered holder of shares, therefore, the provisions of Section 2(22)(e) would not be applicable at all to the case of the assessee firm. In view of CIT v. Hotel Hilltop (2008 -TMI - 33813 - RAJASTHAN HIGH COURT),CIT v. Moon Mills Ltd. (1965 -TMI - 49282 - SUPREME Court) the case is decided in favour of assessee.
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