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Case Laws
Showing 481 to 500 of 1843 Records
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2017 (1) TMI 1364
CENVAT credit - GTA services - Packing of the paper products using LDPE shrink film - denial on account of lack of nexus between input service and output service - Held that: - The service so availed was to carry LDPE shrink films to the premises of the aforesaid clients. That being integrally connected with the output service provided, there is no question of denial of input credit of the services so availed - credit allowed.
Appeal allowed - decided in favor of assessee.
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2017 (1) TMI 1363
Works contract service - commercial or industrial construction service - construction executed is beyond the scope of taxation under FA, 1994 - Held that: - appellant are not providers of 'commercial or industrial construction service' but of ‘works contract service', no tax is liable on construction contracts executed prior to 1st June 2007.
Insofar as demand for subsequent period till 30th September 2008 is concerned, even as the services rendered by assessee are taxable for the period from 1st June 2007 to 30th September 2008 the narrow confines of the SCN do not permit confirmation of demand of tax on any service other than commercial or industrial construction service' - there is no scope for vivisection to isolate the service component of the contract.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1362
Refund claim - Time limitation - For the period April 2011 to March 2014, the appellant availed CENVAT credit of service tax paid on input services used for providing output services exported outside India. Appellant filed refund application for the relevant period on 21.05.2014 - whether the provision of limitation mentioned in Section 11B of the Central Excise Act, 1944 is applicable for refund claims filed under Rule 5 of CCR, 2004? - Held that: - there was an export of service and in the case of export of service, as per settled law, the refund under Rule 5 has to be filed before the expiry of one year from the date of receipt of proceeds of export of service - Learned Commissioner (A) directed the appellant to furnish the documents as required under the statutory provisions, before the adjudicating authority, who shall process the claim and shall pass appropriate speaking order after following the principles of natural justice - I do not find any infirmity in the impugned order passed by the learned Commissioner (A) and therefore impugned order upheld - appeal dismissed - decided against appellant.
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2017 (1) TMI 1361
Determination of the assessable value - According to law as that was prevailing during material period, sale price charged in respect of a solitary transaction did not become basis for determination of assessable value of the goods cleared from any of the above said place of removal at the time of removal thereof - Appellant submitted that a combined reading of the provision of Section 4(1) and 4(4) of the Act leads to the conclusion that the normal sale price of the excisable goods prevailed at a place of removal at the time of removal thereof was recognised by law to be basis for determination of assessable value in respect of unrelated party transactions.
Held that:- Representative sale price prevailed at the particular point of time at the place of removal to satisfy the condition of Section 4(1) (a) of the Central Excise Act, 1944 was not considered by that Authority. Such legal infirmities demonstrate improper application of law. Therefore, in the light of the above analysis of law, it would be proper for both sides to place their case before the appellate authority on the date that may be fixed by him, issuing notice to both sides within three months of receipt of this order.
Appellant’s further submission is that the time-bar aspect may also to be looked into since there was no intention of the appellant to cause evasion and nothing in the show cause notice shows that elements of proviso to Section 11A were present to invoke extended period - The matter having been remitted as above, if any plea is made by appellant in respect of time bar, in the course of readjudication, such aspect is left open to the appellate authority to examine and outcome of his examination shall be recorded by the Authority and resolved - Appeal allowed by way of remand.
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2017 (1) TMI 1360
Denial of Cenvat credit - Input services - Held that: - the learned Commissioner (A) in the appellant s own case has allowed the CENVAT credit on these disputed services, I allow both the appeals of the appellant and hold that the appellants are entitled to CENVAT credit of service tax paid on input services holding that all the input services fall in the definition of input service - Appeal allowed - decided in favor of the assessee.
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2017 (1) TMI 1359
Rebate of Cenvat credit - Rule 5 of Export of Service, 2005 - Time limitation - Held that: - We notice that intimation of personal hearing dated 14th February 2012 upon receipt of reply to show cause notice has intimated three alternative dates in the said intimation and that appellant chose the last option but were not heard - It would appear that the original authority decided not only to adopt this restrictive provision in the proceedings before him but also, in a most ingenious manner, paid lip service to the intent of being given sufficient opportunity to be heard by fixing three alternative dates in the same intimation.
It is clear that order-in-original was received by appellant only on 10th August 2013 and hence there was no delay in filing the appeal before the first appellate authority - No purpose will be served by remanding the matter back to the first appellate authority when the original authority had not afforded the appellant a proper opportunity to counter the grounds for the proposed rejection of the claim for rebate - Appeal allowed by way of remand.
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2017 (1) TMI 1358
Denial of CENVAT credit - Rule 3 of the CCR, 2004 - Held that: - It is a fact that SCN does not cover the issue of ineligibility on account of non-registration of ISD but only for the reason that services are ineligible by virtue of Rule 2 (l) (ii) read with Rule 3 of the Rules. However, following the decision taken in the identical issue in the appellant’s own case, for an earlier period, these appeals are also being sent back to original authority with the same directions - Decided in favor of the assessee.
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2017 (1) TMI 1357
CENVAT credit - various input services - period prior to as well as after the amendment to Rule 2 (l) ibid, w.e.f. 01.04.2011 - Held that: - the disputed services are either required as mandated or obligated by law e.g. Factories Act etc. or are otherwise very much required for smooth and ancillary running of the plant and for their business activity. There is no allegation that any of the services are availed or used primarily for personal use or for consumption of any employee of the appellant. Further, even for the period after 1.4.2011, none of the services availed are barred by exclusions (A) (B) (BA) and (C) in Rule 2 (l) of the CCR, 2004 - the impugned services availed by the appellant are very much in the nature of eligible “input service” for the purpose of rule 2(l) of CCR 2004 - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1356
Levy of penalty - exemption claimed on the ground that the goods were meant for use in the public interest-water treatment project - Held that: - the appellant believed on the public authority's certificate levy of penalty of ₹ 10,000/- under Rule 25 of Central Excise Rules, 2002 is unwarranted. Accordingly, confirming the duty element, penalty is waived - appeal partly allowed.
SSI exemption - whether the goods are duty paid goods and is eligible for exemption? - Held that: - When appellant did not avail any exemption relating to the water project due to withdrawal of the certificate by the Collector, appellant’s case falls under Sl.No.1 of the Table appended to the Notification No.8/2003-CE dt. 1.3.2003 - appeal allowed.
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2017 (1) TMI 1355
Levy of duty - clearance of capital goods as waste prior to 16.5.2005 - N/N. 27/2005-CE dt. 16.5.2005 - Held that: - When repeated SCN were issued and as many as seven numbers, beginning from the period July 1998 to May 2005, Revenue was aware what was the clearances. There is nothing to demonstrate that excisable goods were cleared other than scrap and waste - bringing the capital goods cleared as 'waste' prior to 16.5.2005, no allegation shall sustain. Similarly scrap not being manufactured, appellant shall not liable to duty - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1354
CENVAT credit - Business Auxiliary Service - input service - Held that: - the inclusive part of the definition of Rule 2 (l) ibid should only be considered as examples of the genre of input service that would be permissible. Thus, if sales promotion has been mentioned in inclusive part of the definition, so also it would include the services attendant to such sales promotion, for example, renting of regional sales office, procuring orders and so on.
When the services disputed in this case viz. Business Auxiliary Service relating to sales commission are not specifically excluded by the exclusion portion of the definition and in any case they are services essential directly or in relation to manufacture or business activities, the same would definitely fall within the ambit of Rule 2 (l) ibid - eligible input services - credit allowed - appeal allowed - decided in favor of assessee.
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2017 (1) TMI 1353
Valuation - petroleum products cleared from terminal point to company owned and company operated (COCO) outlets - Rule 7 - Held that: - provisions of Rule 7 are not attracted, in the light of the Larger Bench decision of the Tribunal in Ispat Industries Ltd. vs. CCE, Raigad [2007 (209) ELT 185], wherein it has been held that transfer of part of production to another plant of the same assessee and balance production sold to independent buyers would not attract Rule 8 of Central Excise Valuation Rules, 2000 which is applicable only in a situation where entire production of a particular commodity is captively consumed - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1352
Benefit of Exemption N/N. 108/95-CE dated 28/08/1995 - denial on the ground that the goods were not supplied to the project or Project Implementing Authority but to the contractors who continued to be the owner of the said goods even after the completion of the project - Held that: - ultimately, as the machineries had been put in use by the sub contractors, who were given the job of execution the claim for exemption cannot be denied - the appellant is entitled for benefit of exemption N/N. 108/95 ibid - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1351
Whether the detention of goods and seizure of goods are similar? - Classification of export goods - hand knotted woolen carpets or hand woven carpets? - CBEC circular dated 04.01.2011 - Held that: - Ordinarily, the word "detention" applies to person and not goods. However, in the context of the statute, with which, we are dealing with, detention is the terminology, which is also used in the context of goods. - Therefore, while seizure is an act of taking possession of a property, i.e., goods in pursuance of an legal authority or process, detention of goods is carried out by the respondents, as it were, by way of an administrative practice.
Strangely, the authorities in derogation of its own circular dated 04.01.2011, rejected the request of the petitioner for a provisional release of the subject goods meant for export.
The fine distinction between "detention" and "seizure" of the goods, if any, was lost, as the respondents chose not to release the goods on terms or otherwise, despite, the petitioner's letter dated 08.06.2016, 17.06.2016, 24.02.2016 and 29.03.2016; though, I must note that in the letter dated 24.02.2016, as per the assertions made in the counter-affidavit by the respondents, the terminology used by the petitioner was, he be given permission to re-export the goods, as against seeking permission to export the goods - the continued detention of the subject goods is illegal. Therefore, the petitioner, in my opinion, should be handed over the custody of the subject goods.
What are the terms, on which, the petitioner be allowed release of goods? - Held that: - the goods can be released to the petitioner, upon a personal bond being furnished by him, whereby, he will undertake to pay fine and penalty, if found payable, upon adjudication by the appropriate forum.
Petition allowed - decided in favor of petitioner.
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2017 (1) TMI 1350
Jurisdiction of revisional authority to take up the proceedings - smuggling of gold - one of the reasons that the Revisional Authority is not able to take up the proceedings for hearing, is that, as presently constituted, the said authority holds a rank, which is equivalent to the post of Commissioner of Customs (Appeals) - Held that: - the Punjab and Haryana High Court, in the case of NVR Forgings V.Union of India [2016 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT], has ruled that since the rank of the Revisional Authority and that of the Appellate Authority was the same, the order passed by the Revisional Authority, could not be sustained.
The rank of the Revisional Authority would be upgraded to a level higher than that of the Commissioner of Customs (Appeals).
The petitioner will deposit a sum of ₹ 1,90,000/- towards redemption fine and penalty, subject to which the goods will be released - petition disposed off - decided partly in favor of appellant.
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2017 (1) TMI 1349
Import of prohibited goods - branded shoes and toys - eye liners/eye brow pencils - confiscation of goods with imposition of fine and penalty - Held that: - goods are alleged to have been imported in violation of section 111(d), (i) and (m) of Customs Act, 1962 and prohibited for import under section 11 of Customs Act, 1962. But the fact remains that the proceedings in this case was declared illegal, null and void by the first appellate authority finding that the adjudication proceedings have not fulfilled the requirements of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Confiscation and penalties were vacated by Commissioner (Appeals) and the goods were allowed to be released - no reason found to interfere to the impugned order passed by the Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2017 (1) TMI 1348
Eligibility for Concessional rate of duty - BCD - import of lead calcium positive alloy - certificate of origin - denial on the ground that goods were cleared without examination under the 'Risk Management System' which was a consequence of the importer not having claimed the benefit of the said exemption - Held that: - the issue had been settled by the decision of the Tribunal in Zuani Agro Chemicals Ltd, [1995 (7) TMI 221 - CEGAT, NEW DELHI] which held that a substantive benefit, if otherwise due, should not be denied merely because of minor procedural infractions.
Concessional rate of duty extended - The appellant is entitled to file a refund claim which may be processed and sanctioned subject to verification of documentary evidence to be submitted by the appellant that incidence of duty has not been passed on - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1347
Eligibility to receive interest u/s 14-C on refund - whether during the pendency of the reassessment order in exercise of the powers conferred under Section 12(8) of the Act, the assessee is entitled to get interest from the date of first assessment order under Section 12(1) of the Act? - Held that: - the assessee was conscious about the tax liability and intentionally he has not furnished proper return before the Assessing Officer and subsequently, it was found that the assessee has suppressed the material facts from the Assessing Officer in submission of return and accordingly, the amount of return has been reassessed and the refund amount has been reduced, which has never been disputed by the assessee, rather it has been accepted, which goes to suggest that there is suppression and misrepresentation by the assessee in submitting the return.
The assessee would be entitled to get interest only when the assessment for the particular year would be concluded finally. Hence, the contention of the petitioner that it is entitled to get interest from the date of first application, which has been filed by it after the first order of refund of amount has been passed, is not acceptable to this Court - application dismissed - decided against applicant.
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2017 (1) TMI 1345
Violation of principles of natural justice - Two notices were issued with the proposal to assess six machines, two of which were primary crushers, two secondary crushers of size (iii), one secondary crusher of size (ii) and a cone crusher - Held that: - The petitioner admits in the reply dated 24.10.2016, as extracted in the order, that the petitioner initially installed one primary crusher and two secondary ones and later installed a cone crusher without enhancing the production capacity. The compounding as permitted is not based on the production and is for the machines installed and the petitioner's contentions works against himself.
When, for all practical purposes, it is admitted that deviation is existing in so far as the machinery installed and operating, from that originally declared for the purposes of compounding; there is no explanation offered as to why, on fresh installation, the same was not brought to the notice of the Assessing Officer - Petition dismissed.
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2017 (1) TMI 1344
Winding-up petition - disputes about the complete execution and implementation of the contract - Held that:- Mere supply of the Code Keys with liberty to the respondent-Company to download the same, which fact itself is disputed by the respondent-Company, and in the absence of evidence being produced on record by the petitioner-Company of the said Software actually being downloaded by the respondent-Company in pursuance of the License Keys supplied to the respondent-Company, no clear finding can be arrived at this stage because the contract was required to be executed and implemented by the petitioner-Company or its parent Company-PTC to the satisfaction of the respondent-Company.
In the view of the settled legal position, these kind of disputes about the complete execution and implementation of the contract, cannot be gone into in the winding-up jurisdiction of this Court and it cannot be said that the liability of the respondent-Company in the present case is admitted or undisputed and in such cases, the only appropriate civil remedy is by way of filing a civil suit for recovery of money or any other appropriate remedy like Arbitration etc., and the winding-up petition cannot be converted into a money recovery suit as is sought to be done in the present case.
Thus, the winding-up petition against the respondent-Company is liable to be dismissed
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