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Showing 461 to 480 of 2133 Records

• 2018 (2) TMI 1674
  

  Condonation of delay in filing appeal - Whether Appellate Tribunal was justified in not condoning the delay in filing the Appeal before the Appellate Tribunal without appreciating that reason given by the Appellant was justified and there was no mala fide reasons or dilatory tactics involved in causing the delay?

  Held that: - the Tribunal could not have faulted the assesses. The assesses acted bonafide and under legal advise. There was nothing intentional about the act attributed to the appellants-assesses. Thus there was no gross negligence, utter callousness or malafides and the delay in filing the appeal was properly explained. In these circumstances the liberal principles should have been applied to condone the delay.

  Delay is condoned - the appeal shall stands restored to the file of the Tribunal and to be decided on merits.

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• 2018 (2) TMI 1673
  

  Reversal of cenvat credit - Sale of Carbon Di Oxide (Co2) without payment of duty - case of appellant is that they are not engaged in the manufacture of Carbon Di Oxide (Co2) inasmuch as the same came into existence as a byproduct during the course of manufacture of Denatured Spirit - Held that: - Hon’ble Supreme Court decision in the case of Union of India Vs. Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT], laying down that unintended byproduct, which emerge during the course of manufacture of the final product, would not call for payment of any particular percentage of the value of the same in terms of erstwhile Rule 57CC - the present provision of Rule 6(3) are pari metere to Rule 57CC of erstwhile Central Excise Rule and as such, ratio of law declared in the said decisions would fully apply - appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1672
  

  CENVAT credit - Construction Service - Held that: - on perusal of which it is noticed they are for repair of plant and building. It cannot be said that the repairs of the plant are ineligible for Cenvat Credit as definition as Input Service excludes availment of Cenvat Credit in respect of the construction of new factory premises - Appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1671
  

  Whether the appellant is required to pay penalty of ₹ 1,70,000/- and interest of ₹ 97,736/- for wrong availment of Cenvat credit of ₹ 17,97,052/- which was later reversed by them voluntarily before being pointed out by the department?

  Held that: - admittedly the appellant had initially availed Cenvat credit twice on the same input invoice which they later reversed voluntarily before being pointed out by the department. Also, they have paid the interest of ₹ 97,736/- being pointed out by the audit department. When the entire amount of credit was reversed by the appellant before being pointed out by the department alongwith interest, therefore, imposition of penalty equal to the credit availed is untenable in law - appeal allowed in part.

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• 2018 (2) TMI 1670
  

  Refund claim - price variation clause - unjust enrichment - verification of report from Railways is required on the credit notes submitted by the appellant - Held that: - this exercise is to be carried out by the adjudicating authority for sanction of refund after ascertaining the fact whether the incidence of duty has been passed on or otherwise. Therefore, no purpose will be served to keep the matter pending with this Tribunal - matter remanded to the adjudicating authority with a direction that the adjudicating authority shall ascertain the fact - appeal allowed by way of remand.

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• 2018 (2) TMI 1669
  

  Refund of CENVAT credit and penalty paid during the course of adjudication/appellate proceedings - denial on the ground of Time Limitation - Section 11B of CEA, 1944 - Held that: - the order of the Tribunal was passed on 11.05.2012 and communicated to the appellant on 14.06.2012. The appellant thereafter wrote a letter to the department to re-credit/refund of the amount deposited during the course of proceedings before various forums. Undisputedly in response to the said claim, the department directed the appellant to file it under the proper proforma - the contention that the claim filed second time in proper proforma which was initially returned by the department, would be barred by limitation, is not tenable - appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1668
  

  Refund of CENVAT credit and penalty paid during the course of adjudication/appellate proceedings - denial on the ground of Time Limitation - Section 11B of CEA, 1944 - Held that: - the order of the Tribunal was passed on 01.06.2012 and communicated to the appellant on 14.06.2012. The appellant thereafter wrote a letter to the department to re-credit/refund of the amount deposited during the course of proceedings before various forums. Undisputedly in response to the said claim, the department directed the appellant to file it under the proper proforma - the contention that the claim filed second time in proper proforma which was initially returned by the department, would be barred by limitation, is not tenable - appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1667
  

  Destruction of goods by fire - raw material completely destroyed - time limitation - whether the demand dropped by the learned Commissioner (Appeals) on limitation is correct and legal or otherwise? - Held that: - the respondent have given the details for damages, this communication was sufficient for the Revenue to investigate if they deemed fit to find out whether there is some more damages of inputs or other goods. However the Revenue has not taken any step to make any enquiry - Merely on the basis of statement given by one of the employee of the respondent to the police the same cannot be taken as gospel truth regarding the actual quantum of damage. The show-cause notice was issued almost after 5 years therefore there is no suppression of fact on the part of the respondent - appeal dismissed - decided against Revenue.

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• 2018 (2) TMI 1666
  

  CENVAT credit - correction of wrong forwarding of closing balance of CENVAT account was corrected by passing journal voucher, but no document was produced - Held that: - Inadvertently while transferring the closing balance as opening balance on 01.04.2010 the short amount of balance was transferred that too in the accounting records. However, in ER-1 return there is no discrepancy as correct closing balance of CENVAT as on 31.03.2010 was correctly shown as the same amount in the opening balance of April, 2010 in the ER- 1 return of April 2010 - there is only a clerical error while recording the opening balance in the Month of April, 2010. As such this is not a case of wrong availment of credit or excess availment of credit, therefore there is no question of any demand - appeal dismissed - decided against Revenue.

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• 2018 (2) TMI 1665
  

  Clandestine removal - Ceramics Tiles - whether the appellant had clandestinely manufactured and cleared 44614 boxes of ceramic tiles involving a total duty of ₹ 4,54,929/-? - Held that: - Undisputedly, the allegation of removal of 44614 boxes of ceramic tiles during the period from 05.04.2011 to 16.11.2011, arrived at on the basis of information furnished by the director on the production capacity of the Tiles per day as 6500 boxes. The total quantity of ceramic tiles @ 6500 boxes per day was multiplied to the number of days, to arrive at the total production, during the said period from 05.04.2011 to 16.11.2011. The quantity mentioned in the RG-I Register was compared so as to arrive at the clearance of 44614 boxes being the difference between the recorded figure in RG-I register and the optimum production of 6500 boxes per day - The other evidence that was relied upon in the notice is the statement of Shri Javed Suleman Chania, who alleged to have purchased the ceramic tiles from the appellant manufactured and cleared without payment of duty. The said statement could not stand to the scrutiny of cross examination.

  In absence of other corroborative evidences solely on the basis of the director’s statement of production capacity, the allegation of clandestine removal based on theoretical calculation cannot be sustained as held in a series of cases.

  Appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1664
  

  100% EOU - Refund of unutilized CENVAT credit - Rule 5 of CCR 2004 - Held that: - an identical issue has come up before the Tribunal in the case of Infosys Technologies Ltd. v. CCE [2016 (9) TMI 142 - CESTAT MUMBAI], where it was held that The criteria for refund are existence of accumulated credit, insufficient opportunity for utilization thereof and limiting the extent of refund to the proportion that export turnover bears to total turnover - appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1663
  

  Whether the appellant is required to pay penalty for wrong availment of Cenvat credit which was later reversed by them before being pointed out by the department?

  Held that: - admittedly the appellant had initially availed Cenvat credit twice on the same input invoice which they later reversed voluntarily before being pointed out by the department. Also, they have paid the interest of ₹ 1,12,796/- being pointed out by the audit department. When the entire amount of credit was reversed by the appellant before being pointed out by the department alongwith interest, therefore, imposition of penalty equal to the credit availed is untenable in law - appeal allowed in part.

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• 2018 (2) TMI 1662
  

  Entitlement to interest on interest - case of appellant is that the interest does not remain as interest but it is appropriated towards the outstanding dues. Therefore, the contention of the Department that interest amount ₹ 11,73,799/-, earlier allowed would not again attract interest, is unsustainable in law - whether the Appellant is entitled to interest on ₹ 11,73,799/- appropriated earlier against the confirmed demand?

  Held that: - The Department even though refunded the said amount of ₹ 11,73,799/-, but declined to pay interest on the same holding that the said amount was earlier sanctioned/allowed to the Appellant as interest to the pre-deposit amount of ₹ 17,43,384/-, hence cannot be considered as principal amount and continues to be interest only - It cannot be denied that had the amount not appropriated, the Appellant would have received the interest amount of ₹ 11,73,799/- along with the principal amount of ₹ 17,43,384/- way back in 1995. Thus, on appropriation the interest is merged with the principle amount. In the result, the Appellant is entitled to interest on the amount of ₹ 11,73,799/-.

  Appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1661
  

  CENVAT credit - inputs - material usage variance not used in manufacture of goods - Held that: - there is no provision under the CENVAT Credit Rules, 2004 for denial of availment of credit merely on the ground that the assessee has admittedly deployed inputs in excess of the ideal for achieving desired output level The demand for recovery of the credit held to be ineligible by the lower authorities does not have the sanction of law - the tax element here is manufacture and the inefficiency attributed to excessive usage of materials is perforce reflected in an enhanced assessable value on which appropriate duty liability has been discharged - appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1660
  

  CENVAT credit - mobile networking service - security agency service - Held that: - It is seen that mobile phone service is a permitted input used in relation to manufacturing activities. The appellant has elaborately demonstrated the nature of mobile networking as a communication system that is essential for monitoring production activities. No flaw can be found in this submission and the availment of credit cannot be denied.

  In Castrol India Ltd v. Commissioner of Central Excise, Vapi [2013 (9) TMI 709 - CESTAT AHMEDABAD], the Tribunal has held that ‘security agency service’ cannot be alienated from the production process if used in a factory. No evidence to the contrary has been produced by Revenue. The availment of credit of tax paid on procurement of this service cannot be faulted.

  Credit allowed - appeal allowed - decided in favor of appellant.

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• 2018 (2) TMI 1659
  

  Disposal of pending cases - matter in question is pending before the High Court - Transition of Indirect Tax to GST - Held that: - it would be appropriate and prudent to close the files for the purpose of statistics - the appeals along with stay order / interim orders, if any, will continue before the Tribunal and the matters are closed only for the purpose of statistics - appeal disposed off.

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• 2018 (2) TMI 1658
  

  Validity of Notification dated 31.03.2003 (Annexure P/1) read into Haryana Value Added Tax Act, 2003 - jurisdiction acquired by the State - Whether the notification dated 31.03.2003 is legal and valid in the light of the fact that the VAT Act came into force on 1.4.2003 and that was the “appointed day” as per provisions of Section 1(c) of the VAT Act?

  Held that: - The object of issuing the notification on 31.3.2003 is manifestly clear that the State Government wanted to appoint the authorities and to put the complete mechanism in order so as to effectively enforce the VAT Act w.e.f. 1.4.2003. There cannot be any bar on the State's power to do the ground-work for enforcement of a Statute, especially the tax statute where complete mechanism would be required to give effect to the provisions of the Statute for recovery of tax. The State of Haryana had issued notification on 31.3.2003 for appointment of Deputy Excise & Taxation Commissioner (ST) as Revisional Authority. But at any rate, the revisional authority had not exercised any power before the 'appointed day'. Rather, challenge to the order passed by the revisional authority in the present case is dated 30.8.2011 and that is relating to the assessment year 2005-2006 i.e., much after the 'appointed day'.

  The impugned notification was issued on 31.3.2003 notifying the appointment of revisional authority after the VAT Act had obtained the assent of Governor of Haryana on 26.3.2003 and it stood notified on 28.3.2003. The State was thus well within its power to issue such notification in respect of appointment of an authority to give effect to the provisions of the VAT Act and in the present case also, the power was actually exercised by the revisional authority on 30.8.2011 i.e., much beyond the appointed day.

  There is no illegality in issuing such notification so as to create the mechanism for effective enforcement of the tax Statue especially when the revisional authority, i.e., Deputy Excise & Taxation Commissioner (ST) had not assumed or exercised any authority or passed any order before the 'appointed day' - petition dismissed - decided against petitioner.

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• 2018 (2) TMI 1657
  

  Principles of natural justice - It is the case of the petitioner that the returns filed by the petitioner for the years 2014-15 and 2015-16 had been accepted by the respondent and an order was passed under section 22 of the TNVAT Act - Held that: - considering the fact that the Assessing Officer has to re-do the assessment, the matters are remitted back to the Assessing Officer to re-do the assessment commencing from the stage of issuing notice of proposal, after following guidelines/procedures issued by this Court - petition allowed by way of remand.

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• 2018 (2) TMI 1656
  

  Whether the Tribunal could have decided the second appeal in the manner it has done, cursorily, without considering the grounds of the second appeal and the questions raised before it, by merely reiterating and affirming the order of the First Appellate Court without giving any reasons for non acceptance of the pleas raised before it by the revisionist-appellant?

  Held that: - the second appeal of the revisionist is required to be re-considered by the Tribunal keeping in mind the issues involved on merits as noticed hereinabove, as it has not done so as per the requirements of law - the question is decided in favor of revisionist.

  Revision allowed.

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• 2018 (2) TMI 1655
  

  Issuance of C-form - case of respondent is that they had admitted their liability and submitted that it was not their intention not to pay tax. But due to unexpected situation and stringent financial crisis, they were unable to pay tax.

  Held that: - The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.

  Courts have consistently held in taxing statute, there is no equity. If tax has not paid as declared, within the time provided there for, consequences would follow. When the dealer had collected tax from the buyer, tax should be paid to the Government, within time. Retention of the same would amount to unjust enrichment.

  The respondent/assessee, cannot be permitted to avail the facility of on-line generation of Form C declaration.

  Appeal allowed - decided in favor of Revenue.

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