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Case Laws
Showing 461 to 480 of 1962 Records
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2017 (3) TMI 1503
Whether the manufacturer had removed excisable goods under bond-ARE-1 on 31/03/2005, which were finally exported, after delay, on 10/03/2006 and had filed the evidence of export before the Assessing Authority?
Whether issue of SCN dated 30/03/2006, for levy of duty and penalty is just and proper?
Held that: - there is no dispute on the fact of export - further, there was no revenue implication, since the goods meant for export have been finally exported. Thus, the situation became revenue neutral and no SCN was required to be issued. As on the date of the issue of SCN, there was no case of duty being unpaid or short paid and/or the export having not taken place. The Adjudicating Authority should have allowed further time to file additional evidence, if required, in the shape of Shipping Bill & Bill of Lading - further the appellant have brought on record, Banking Realization Certificate, with respect to the export of goods under the bond - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1502
CENVAT credit - Sodium Saccharine - Acrylamide - Titanium Dioxide - N. Butanol - Dicyandiamide - denial on the ground that the said chemicals/inputs are not inputs for manufacturing of their final product and have not been transported to their factory - Held that: - the appellant has filed regular declaration/undertaking with regard to usage of these inputs and manufacturing of their final product as back as 1995-96 to the inputs in question has been used by the assessee in manufacturing of disproportionate resins/camphor and usage - As these facts have neither been examined and nor been contravened by the adjudicating authority, therefore, it cannot be held that these chemicals are not inputs for manufacturing of their final products. Therefore on this ground, the cenvat credit cannot be denied.
The investigation for transportation of goods has been conducted in respect to the only one transporter M/s ABG Carrier in 2007 whereas, the goods have been transported during the period 2002-2003 to 2003-2004. It is only presumption that the goods have not transported by transporter. In fact, the invoices have mentioned the lorry numbers and no investigation has been conducted with the owner's of lorry or drivers of the said lorry. There are three others transporters, who have transported the goods, these transporters were not examined, therefore, in the absence of any positive evidence that cenvat credit cannot be denied to the asssessee.
Demand set aside - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1501
Reversal of credit - the respondent sold old and used machinery without payment of duty, therefore, it was pointed out that the respondent is required to reverse cenvat credit on these capital goods in terms of Rule 3(5) of the CCR, 2004 - Held that: - as per provisions of Rule 3(5) of the CCR, 2004, the asseessee required to reverse cenvat credit availed on the capital goods if they are cleared as such - Admittedly, in this case, the respondent has not cleared capital goods as such. Moreover, the capital goods have been acquired prior to 1994. This fact has not been disputed by the Revenue with any cogent evidence - provisions of Rule 3(5) of CCR, 2004 are not applicable to the facts of this case, assessee were not required to reverse cenvat credit at all as they have not taken cenvat credit.
Appeal dismissed - decided against Revenue.
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2017 (3) TMI 1500
Validity of SCN - demand not quantified in SCN - Benefit of SSI under N/N. 1/93-CE dated 28.02.1993 - Revenue's case is that since the final products were exempted and therefore untrimmed goods, which were intermediate goods manufactured for making final products, should attract duty - Held that: - the SCN dated 26.06.1997 has not quantified the demand raised. It has mentioned that the quantification would be done at the stage of adjudication. As the demand was not quantified through the SCN such SCN is not sustainable. There has been total failure of framing of charges. Therefore, the said SCN dated 26.06.1997 is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1499
Classification of goods - Mincing Machine for Meat - whether classified under Tariff Item No.73239100 covering “Kitchen or other household articles and parts thereof” as mentioned by assessee or under Tariff Item No.84385000 which covers “Machinery for the Industrial preparation or manufacture of food or drink” as claimed by Revenue? - benefit of N/N. 10/2006 dated 01/03/2006 - ld. Commissioner (Appeals) has passed a reasoned order in view of the fact that the goods supplied by respondents were small kitchen gadget of specific design used in the kitchen of Indian Army - Held that: - the ground raised by Revenue are not sustainable because the Explanatory Notes, on which Revenue placed reliance, have no force of law and they are only for guidance whereas the finding of ld. Commissioner (Appeals) is on the basis of CETA, 1985 enacted by Indian Parliament. Therefore, the ground raised by Revenue are not sustainable - appeal of Revenue dismissed - goods correctly classified under Tariff Item No.73239100 covering “Kitchen or other household articles and parts thereof” - decided against Revenue.
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2017 (3) TMI 1498
Penalties - Benefit of doubt - clandestine removal - duty paying documents - Held that: - The Revenue has not taken pain to investigate Dharamkanda owners or transporters to establish whether the goods have been weighed or transported. In the absence of any cogent evidence, particularly the buyers of the goods denied the receipt of the goods, the demand against the respondent namely, M/s.Vee Kay Concast Pvt.Ltd. is not sustainable, therefore, benefit doubt goes in favor of the respondents - the charge of clandestine manufacture and removal of the goods is not sustainable in the eyes of law - penalty set aside - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1497
CENVAT credit - denial on the ground that appellant during the period 2004 to 2006 had availed Cenvat Credit on the Capital goods as well as benefit of depreciation u/s 32 of the Income Tax Act, 1961 - Held that: - the appellant has though initially claimed depreciation under Income Tax Act as well as benefit of Cenvat Credit on the capital goods for the respective years, but later surrendered the benefit of Income Tax in the year 2006-07. Hence, it cannot be said that they have availed both the benefits - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1496
Clandestine removal - whether the ld. Commissioner (Appeals) have rightly reduced the demand, confirmed on account of clandestine removal and also justified in reducing the penalty imposed on the respondent partner, Dinesh Kumar Johary? - Held that: - no case of deliberate default of the provisions of law is made out to the effect that the respondents were knowingly that the branded goods are liable to tax and clearing, the same without payment of duty, so as to evade payment of duty. Thus, no case of clearance with intent to evade duty is made out against the respondents. Further, under the facts and circumstances, the ld. Commissioner (Appeals) have erred in reducing the demand of duty and in view of the categorical admission by both the partners, wherein the proximate quantity of clearance have also been stated. I hold that ld. Commissioner (Appeals) have erred in reducing the duty demand and accordingly, I restore the demand of duty to ₹ 3,11,100/-.
No case of deliberate defiance of the provisions of the Act and the Rules and/or suppression of facts is made out against the respondent firm and the partner, I set aside the penalties imposed on them.
Appeal dismissed - decided partly in favor of appellant.
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2017 (3) TMI 1495
SSI exemption - brand name - denial on the ground that assessee had been using an ineligible brand on the products cleared by them and the amount due was computed as the duty short-paid by ineligible availment of the exemption - Held that: - it is the goods that must be affixed with the ineligible brand name for the exclusion to take effect. There is no allegation that this is so - the exemption notification is not intended to govern the use or restrict eligibility arising from use of the ineligible brand name on any documentation.
The agreement confers exclusive rights to the appellant-assessee to use the ‘trademark’ and, from this, it would appear that the impugned mark is no longer that of the overseas collaborator for the purpose of the specified territory but is that of the appellant-assessee.
Appeal allowed - benefit allowed - decided in favor of assessee.
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2017 (3) TMI 1494
Revocation of CHA licence - forfeiture of security deposit - penalty - it was alleged that there was a deliberate mis-declaration apropos the quality, quantity, value and weight of the consignments with the intention to defraud the government and illegitimately claim the benefit of duty-drawback - Held that: - Any act to defraud presupposes the intention to obtain something fraudulently - In the present case there is no evidence of active facilitation of clearance of the consignment through customs by the appellant, hence, no mens rea can be inferred to defraud the government for obtaining duty drawback through a fraudulent transaction. Consequently, the appellant cannot be faulted or punished in the manner it has been.
The CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect to clearance of goods through customs house and in that process only such authorized personnel of the CHA can enter the customs house area. What is noteworthy is that the IE Code of the exporter M/s H.M. Impex was mentioned in the shipping bills, this itself reflects that before the grant of said IE Code, the background check of the said importer/ exporter had been undertaken by the customs authorities, therefore, there was no doubt about the identity of the said exporter. It would be far too onerous to expect the CHA to inquire into and verify the genuineness of the IE Code given to it by a client for each import/ export transaction. When such code is mentioned, there is a presumption that an appropriate background check in this regard i.e. KYC etc. would have been done by the customs authorities. There is nothing on record to show that the appellant had knowledge that the goods mentioned in the shipping bills did not reflect the truth of the consignment sought to be exported. In the absence of such knowledge, there cannot be any mens rea attributed to the appellant or its proprietor.
The revocation of the appellant’s CHA license is unjustified and is accordingly, set aside - the forfeiture of the security amount and the imposed penalty of ₹ 1 lakh also is set aside - appeal allowed - decided in favor of appellant-CHA.
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2017 (3) TMI 1493
Monetary limits for filing appeal - appeals filed by the department in the year 2012 having monitory limits of below 15 / 20 lakhs - Held that: - appeal maintainable as within the monetary limits - once the appeals are disposed off in view of the above circumstances, based upon such circulars / instructions it shall not preclude such Commissioner of customs from filing any appeal, application, revision or reference in any other case involving the same or similar issues or questions of law - application allowed.
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2017 (3) TMI 1492
Benefit of N/N. 21/2002 dated 1/3/2002 - snap fasteners - According to the petitioners, they have been regularly importing snap buttons from the year 2002/2003 onwards, which would come squarely under Sl.No.140 and the duty was totally exempted, without any conditions attached to it - Revenue's claim that snap fasteners are covered under heading No.96061010, and therefore the goods are eligible for exemption as they are misdeclared - The Department therefore took up a contention that the snap fasteners which are imported by the petitioners under the respective bills of entry can no longer be assessed under Sl.No.140, but assessment can be made only under Sl.No.167. It is submitted that notification bearing No.12/2012 dated 17/3/2012 was published superseding notification No.21/2002 by which the items had been renumbered. The original Sl.No.140 has been renumbered as Sl.No.232 and Sl.No.167 has become Sl.No.282.
Held that: - It is true that the entry buttons has not been taken away from Sl.No.232. But it is relevant to note that item 282 relates to fasteners, including buttons and snap fasteners. Apparently, there is some difference as far as buttons are concerned compared to that of fasteners. In Sl.No.232, buttons alone has been mentioned whereas in Sl.No.282, the word used is "fasteners" and it is qualified by the words "including buttons and snap fasteners, zip fasteners, including zippers in roll, sliders/pullers and end-stoppers." In other words, if it is merely buttons, it comes under Sl.No.232 and with respect to buttons which can be used as fasteners, it will come under Sl.No.282.
There is a difference between both the commodities and it is for the various customs authorities to verify the same and arrive at a conclusion. Hence, I do not think that this Court will be justified in arriving at a conclusion as to whether the particular commodity was either "button" coming under Sl.No.232 or "fasteners"/snap fasteners" coming under Sl.No.282
The petitioners are permitted to prefer an appeal - goods to be released on furnishing of bank guarantee - petition allowed - decided partly in favor of petitioner.
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2017 (3) TMI 1491
Input tax Credit - duty paying documents - Works contract - whether the awarder of the contract, namely, Karnataka Water Supply Board is ‘Government’, and therefore, the Running Bills prepared by the Board can be construed as “Tax Invoices” within the meaning of Rule 27(2) Proviso of Karnataka Value Added Tax Rules, 2005?
Held that: - The purpose of the Proviso to Rule 27(2) of the KVAT Rules giving the status of “Tax Invoices or Bill of Sale” even to the “Running Account Bills” to the awarders of the work contract to be executed by contractors by the Government or its departments is obviously to allow such contractors to take input tax credit on the basis of such tax invoices. Since running bills are prepared during the currency of the execution of contract itself since the final bill is not made at that point of time.
There is no reason to hold that the Karnataka Water Board, in question, is not a Department of the Government or so as to fall outside the ambit and scope of the said Proviso to Rule 27(2) of the KVAT Rules - revision dismissed - decided against Revenue
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2017 (3) TMI 1490
Refund claim - unjust enrichment - on the aspect of applicability of Section-47 of the KVAT Act and its consequential effect, the matter has been remanded by the Tribunal to the Jurisdictional Local VAT Officer - Held that: - since the matter is at large to be examined by the Jurisdictional Local Vat Officer in accordance with law, the petition may be permitted to be withdrawn - all the rights and contentions of both parties including the question of applicability of Section-47 of KVAT Act shall remain open to be considered by the Jurisdictional Local VAT Officer - petition quashed.
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2017 (3) TMI 1489
Validity of assessment order - natural justice - no Notice of hearing has ever been given and ex-parte order has been passed - Held that: - Notice has been served upon the guarantors of the petitioners. Such type of service of Notice is no Notice in the eye of law, especially when tax liability is to be imposed upon the petitioners. The minimum requirement is that Notice of hearing should be served upon the Assessee before passing such order against the assessee - This minimum requirement has not been fulfilled in this case as a result of which work load of this court has unnecessarily been increased and therefore, such type of matters should be remanded - appeal allowed by way of remand.
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2017 (3) TMI 1488
Input tax credit - denial on the ground that the invoices could not be produced - the tax invoices were lost. The appellant failed before the First Appellate Authority and the Tribunal as he could not get duplicate copy of tax invoices and statutory VAT-C-4 by that time. Subsequently the appellant obtained duplicate copy from the Selling Dealer and also VAT-C-4 in original - Held that: - the appellant has produced the duplicate tax invoices and the statutory form VAT-C-4, along with the present appeal, in our view the appeal deserves to be accepted. The impugned orders passed by the Authorities are set aside. The matter is remitted back to the Assessing Authority for fresh determination of tax liability of the appellant after the appellant furnishes duplicate tax invoices and original statutory form VAT-C-4 - benefit of input tax credit allowed - appeal allowed by way of remand.
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2017 (3) TMI 1487
Compounding of offences - KVAT Act - For compounding an offence, which of the compounding fees should be paid by the assessee: the one prevailing when the evasion took place or the one prevailing at the time of actual compounding?
Held that: - If it is a continuing offence, the penalty applicable at the terminus is the penalty the erring assessee shall be mulcted with - If it is non-recurring (for want of a better expression), the liability stipulated when the offence has been committed alone shall apply. We shall, in a while, examine whether either of these contingencies applies to the case on hand.
Compounding is in relation to an offence; what was imposed, however, is fee. No quarrel can we have with the proposition that imposing fee is a taxing aspect of the State under Article 265 of the Constitution of India. Equally indisputable is that fee can be levied even retrospectively as it falls beyond the mischief of Article 20(1) of the Constitution, which concerns punitive sanctions: punishment and penalty, neither of which is fee. Viewed alternatively, we may, before parting with the matter, observe that the appellant has not made out any positive case that the nomenclature notwithstanding, what is being collected is penalty rather than fee.
The compounding fee as prevailing at the time of the assessee’s deciding to pay it shall alone apply - appeal dismissed - decided against appellant.
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2017 (3) TMI 1486
Interest on delayed payment - Revenue's case is that once it is established that the amount of tax as was due in terms of the provisions of the Act and the notification issued thereunder had not been paid along with the returns, there is nothing wrong in raising the demand of interest for its delayed payment - Held that: - an assessee cannot foresee the additional demand of tax on account of reassessment or in revision and the interest would become payable only from the date, the demand is raised and not from the date of filing of return - demand of interest set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1485
Entitlement to consider any value other than the transfer consideration paid by the appellant or the amount as has been specifically directed by the Central Electricity Regulatory Commission in its impugned Judgment to M/s. National Thermal Power Corporation Limited for the purpose of depreciation - Held that:- The Appellate Tribunal has merely stated that the treatment for depreciation under the Income Tax Act and for determination of tariff under the Electricity Act are different. However, such point which has been decided by the Tribunal, in our considered view, cannot come within the purview of accounting principle and, therefore, it has been noted that the Judgments which have been relied upon before us substantially support the claim of the appellant – herein and accordingly, we set aside the order so passed by the Tribunal. As a consequence thereof, whatever consequential orders are necessary to be passed in the matter, the concerned Authorities shall take necessary steps in the matter.
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2017 (3) TMI 1484
Entitlement to get the lease deed renewed - land was taken for Oil Mill but huge commercial construction was done - Held that:- Municipality has no authority to grant a lease for a period exceeding 10 years without prior permission of the State Government. In the present case, the State Government had only granted permission to lease the land till the year 2012. Therefore, the appellant has no inherent right to claim that fresh lease be granted in its favour.
The original lease was granted for running an oil mill and as on date admittedly there is no oil mill situated on the land. The leased property is a public property leased out at a very meagre rent. It cannot be utilised for a purpose other than the purpose for which it was leased out. True it is that the appellant may have been permitted to raise construction on the leased land but it is obvious that the construction to be raised should have connection with the original business of the company i.e. running an oil mill. The appellant has raised a huge commercial complex earning crores of rupees but is paying only a few hundred rupees to the Municipality.
The appellant is not entitled to claim that lease deed must be renewed in his favour. The High Court of Gujarat was perfectly justified in holding that the appellant cannot claim that he is entitled to renewal of the lease deed as a matter of right. The finding of the High Court that the appellant is earning huge profits by way of rent is not denied. It has also been stated that the land is required by the Municipality for educational purposes.
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