|
Advanced Search Options
Case Laws
Showing 481 to 500 of 1407 Records
-
2015 (2) TMI 932
Penalty u/s 76 & 78 - Suppression of facts - Whether there was suppression in declaring the receipt of taxable service tax and consequent short payment of service tax and consequently imposition of penalty under section 76 and 78 of Finance Act was justified or not - Held that:- While going through the records, it is evident that suppression of taxable receipt was detected by the revenue and the appellant accepted short levy of service tax and deposited the service tax, Their contention that there should not be imposition of penalty as service tax has been deposited by them is not tenable. It was only on investigation Toy the revenue that suppression could be detected. As such no benefit of exemption from penalty could be made available to the appellant. - Decided against assessee.
-
2015 (2) TMI 931
Waiver of pre deposit - Commercial Coaching and Training Institute service - Imposition of interest and penalty - Held that:- The fact is that the applicant is running the courses recognised by the University have not been considered by the Revenue at the time of issuance of show-cause notice. In fact the applicant is running courses recognised by the university and issuing degree for providing those courses. Therefore, for the period prior to May 11 prima facie the applicant is not covered under the definition of "Commercial Coaching and Training Centre". Therefore, the argument advanced by the AR that running of degree courses by the applicant being recognised by the University is not subject matter is not correct as we have to see the whole activity carried out by the applicant.
Therefore, the applicant is not providing service under the category of "Commercial Coaching and Training Centre". Further, we find that post 2010, the applicant is collecting service tax on the fees recovered by them from the students to whom they are providing professional courses which are not recognised by the University. Although they are maintain a separate account as "Deposits towards service tax." But as they have collected the amount on account of service tax the same is required to be paid to the department at this stage. - Partial stay granted.
-
2015 (2) TMI 930
Goods Transport Agency - Authorised Service Station - Revenue have disallowed the input service credit on GTA service, holding that the input service is in respect of sales of motor cycles, which is a trading activity and not related to the servicing activity of the appellant - Held that:- The facts are squarely covered by earlier ruling of this Tribunal in [2014 (5) TMI 614 - CESTAT MUMBAI] & in the case of CCE Vs. Shariff Motors (2009 (3) TMI 155 - CESTAT, BANGLORE). I have taken up the matter for final disposal with consent, and accordingly, following the ruling of this Tribunal I allow the appeal in favour of the appellant and Revenue is directed to refund the amount of tax within six weeks from receipt of copy of this order, along with interest as per Rules. - Decided in favour of assessee.
-
2015 (2) TMI 929
Waiver of pre deposit - construction of residential complex service - Held that:- Applicant was engaged in construction of residential complex for the Tamil Nadu Police Housing Corporation Ltd. under the Govt of Tamil Nadu - following the Tribunal's earlier decision (2013 (8) TMI 262 - CESTAT CHENNAI), we waive predeposit of tax along with interest and penalty till disposal of the appeal - Stay granted.
-
2015 (2) TMI 928
Cancellation of registration certificate - whether the Tribunal is correct in holding that the Appellant has not done any genuine business of buying and/or selling goods but issued only bogus bills without considering and examining the facts of the transactions of sale and purchase of goods brought to the notice of the Tribunal - Held that:- If there was no genuine business transaction and carried on in the name of this entity, then, how the registration certificate was issued and on whose application and in relation to what business transaction is not adverted to, at all. - If the notice in Form No.309 is relied upon and the order recites that it was issued, then, the further finding that it was duly served by affixing a copy thereof on 3rd October, 2012 appears to be contradictory. It was issued and stated to have been reversed, then, why it came to be affixed has not been clarified at all. If the affixation has been done because none was found in the premises on whom personal service could have been effected, then, a clear endorsement in that behalf was required. If the act envisages a request being made by the dealer for cancellation of the Registration certificate and order in that behalf is capable of being reviewed, then, that is to precede by serving the concerned dealer a notice in the prescribed form.
If Rule 87 of the MVAT Rules, 2005 are referred to, then, that demands service of orders and notices by delivery by hand of a copy of the order or notice to the addressee or to a person declared by him in Form 105 or to his agent duly authorized in this behalf by him, or to a person for the time being employed by him in connection with the business in respect of which he is registered as a dealer, or to any adult member of his family residing with the dealer. Therefore, one of the modes has to be adopted and in terms of Rule 87(1)(a)(b)(c)(d) and (e) all these are either hand delivery or by post or by email or by sending a copy of the order or notice by a courier agency appointed by the Commissioner. If upon an attempt having been made to serve any order or notice by the above stated modes, does not result in the person being duly served and the sales tax authorities are of the opinion that the order or notice cannot be served by any of the above, then, he can resort to other more prescribed and which, inter alia, is affixing of such notice on the premises or office of the dealer.
Tribunal ought to have been satisfied that the notice could not be served by the modes set out under rule 87(1) and, therefore, affixing was necessitated. Secondly, if the reliance is placed by the Tribunal on a statement being recorded during the course of investigation and that of the Appellant, then, the Appellant should have been put to notice of any such statement given by him. The Appellant ought to have been given an opportunity to inspect the record and which was before the Deputy Commissioner of Sales Tax when he passed the order dated 29th November, 2012. Thus, if there was evidence and material to indicate that the Appellant in collusion with the hawala operators perpetrated a fraud on the department by obtaining a bogus registration, then, all such documents and materials should have been disclosed to the appellant much in advance so that he could have dealt with them.
There was a necessity of giving a proper and complete opportunity to the Appellant to contest the factual materials we quash and set aside the order of the Tribunal and restore the VAT Appeal on the file of the Tribunal for rehearing and decision afresh on merits and in accordance with law - Matter remanded back - Decided in favour of assessee.
-
2015 (2) TMI 927
Adjustment of carried forward input tax credit - Whether the Tribunal has committed any error in law and in facts in deleting the interest and penalty or not - Held that:- As the demand is confirmed and the adjustment is permitted but the interest and penalty imposed are deleted - Assessee had no surplus balance of input credit, which has been adjusted against the demand of tax upon re-assessment. Under these circumstances, the element of avoidance of tax could be said as lacking. Consequently, the deletion of interest and penalty on the part of Tribunal could not be said as unjustifiable. In the event, when the issue is already covered by the referred decision [2015 (2) TMI 372 - GUJARAT HIGH COURT], we do not find that any substantial question of law would arise as sought to be canvassed. - Decided against Revenue.
-
2015 (2) TMI 926
Denial of balance 10% refund claim - 90% of provisional refund already granted - Petitioner did not apply for balance disbursement - Bar of limitation - Held that:- As such, when the refund to the extent of 90% was already made as a provisional refund and 10% was to be refunded at the later stage, there is no question of expiry of the period of the assessment as sought to be canvassed. In normal circumstances, as per section 38 of the Gujarat Value Added Tax Act, the refund is required to be made with interest at the rate of 6% p.a. However, Mr. Kaji, learned counsel appearing for the petitioner under the instruction of his client declared before the Court that if the petitioner is permitted to adjust the amount payable by way of refund of ₹ 1,04,118/towards future tax liability, his client would not claim for interest and the same would satisfy his client. - in view of the declaration made by the petitioner himself, the matter can be put to rest, but suffice it to observe that once the refund in part is made, the refund for the balance amount is required to be made and there is no question of applying limitation as sought to be canvassed on behalf of the respondent. Interest not awarded in view of declaration made by the petitioner - Decided in favour of assessee.
-
2015 (2) TMI 925
Waiver of pre deposit - Clandestine removal of goods - Financial hardship - Held that:- Tribunal has considered the prima facie case and also the plea of financial hardship expressed by the appellant and taking into consideration the quantum of demand of ₹ 3,02,08,777, had ordered pre-deposit to the tune of ₹ 1 Crore only as pre-condition for hearing the appeal. However, though modification was sought for on the same set of arguments, the Tribunal thought it fit not to modify the order. The Tribunal has further observed that, the said amount having not been deposited and the order having not been complied with, and even on enquiry by the Tribunal on the question of extension of time for making the pre-deposit, the counsel for the appellant having submitted that the appellant is not in a position to make the pre-deposit, the Tribunal thought it fit to dismiss the appeal. In view of the well considered order of the Tribunal, wherein the prima facie case and financial hardship of the appellant were taken into consideration while ordering pre-deposit, which order has not been complied with, the bona fide of the appellant in filing the appeal now itself is in question. In such view of the matter, this Court finds no reason to interfere with the order of the Tribunal at this point of time, more so when the issue has become stale by efflux of time. The appellant is unable to point out any question of law that warrants consideration by this Court to justify this appeal. Nevertheless, we find no question of law, much less substantial question of law that arise for consideration in this appeal - No merit in appeal - Decided against assessee.
-
2015 (2) TMI 924
Reversal of Cenvat credit in case of Common Cenvat credit - Manufacturing of dutiable as well as exempted articles - Retrospective amendment in Rule 6(3) of the Cenvat Credit Rules, 2004 - Commissioner in de novo proceedings could not go into question already decided by tribunal - Safeguarding the interests of the Revenue does not mean that a duty demand must be confirmed ignoring the facts on record, pleas made by the assessee and the judgments of the Tribunal and the courts - Penalty on adjudicating authority / Commissioner for passing irresponsible adjudication orders.
Held that:- We are of the view that this order of the Commissioner is not only without application of mind whatsoever but is also in contumacious disregard of the decision of the Tribunal. - in the de novo adjudication proceedings, which will be the third round of adjudication by the Commissioner, the Commissioner must requantify the cenvat credit to be reversed on proportionate basis for the period from 1.4.2008 to August, 2009 strictly as per the Tribunal's order i.e under Rule 6(3) (ii) read with the formula prescribed in Rule (3A) and in this regard, the Commissioner shall consider the Appellant's plea that they, during this period, have not taken the credit in proportion to the inputs/input services used in on in relation to manufacture of exempted final products and also the reports of Asstt. Commissioner of Central Excise, Agra to Asstt. Commissioner (Adjudication) on this issue. In view of the Tribunal s final order dated 27.12.2012, the Commissioner cannot once again go into the question of applicability of the provisions of Rule 6(3)(ii).Since the Tribunal had set aside the penalty, in de novo proceedings, the Commissioner cannot decide to impose the penalty again. - Decided in favour of assessee.
Hon'ble Delhi High Court in case of Rahul Enterprises [1998 (12) TMI 577 - DELHI HIGH COURT] has held that Commissioner of Sales Tax, as quasi judicial authority, can impose adjournment cost, as while awarding costs acts as a deterrent to the frequent requests for adjournment, it also compensates the other party for inconvenience caused by adjournment. In our view this principle, though in the context of frequent requests for adjournment, will apply in a case where the commissioner defying the Tribunal's directing and ignoring the provisions of law passes an order which should never have been passed and thereby forcing the assessee to file appeal before the Tribunal. Accordingly, a cost of ₹ 10,000/- (Rupees ten thousand only) is imposed on the Respondent Commissioner which is to be paid by the Commissioner who has adjudicated this matter.
-
2015 (2) TMI 923
Merchant Overtime Tax Charges (MOT) - whether the applicant is required to pay the MOT charges (Merchant Overtime Tax) for the services rendered by the Departmental Officers (as Customs Officers) during office hours for any Customs examination/work is being done in their factory/ware house - Held that:- Larger Bench of the Tribunal in the case of CCE Rajkot Vs Reliance Industries Ltd. [2013 (10) TMI 675 - CESTAT AHMEDABAD], following the decision of Hon’ble Delhi High Court in the case of Sigma Corporation Ltd. [2013 (4) TMI 649 - DELHI HIGH COURT], on the identical issue, held that in view of the decision of Hon’ble Delhi High Court, the issue referred for constitution of Larger Bench, does not survive. The issue referred to Larger Bench is whether there is requirement for payment of Merchant Overtime Charges (MOT) towards services rendered by Central Excise Officers during working hours, in respect of services pertaining to supervision of boarding of goods exported through containers, i.e. levy of fees the under Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998, these Regulations having been issued in exercise of powers under Sections 157 and 158 of the Customs Act, 1962 read with para 1.2, part II, Chapter 18 of the C.B.E. & C. Excise Manual of supplementary instructions. - Respectfully following the decision of Hon’ble Delhi High Court and Larger Bench of the Tribunal, we find that the impugned orders cannot be sustained. Accordingly, the impugned order is set aside - Decided in favour of assessee.
-
2015 (2) TMI 922
Denial of Cenvat credit on capital goods and rent a cab service - denial on the premise that the said service does not qualify as input service as per Rule 2(l) of Cenvat Credit Rules, 2004 - Held that:- It is not in dispute that capital goods have not been received by the appellants and duty has not been paid by the appellant. Therefore, reliance on the decision of Hon'ble High Court of Punjab and Haryana in the cases of Stelko Strips Ltd.(2010 (3) TMI 68 - PUNJAB & HARYANA HIGH COURT) and Ralson India Ltd. (2005 (12) TMI 37 - HIGH COURT OF PUNJAB & HARYANA (CHANDIGARH)), the appellant is entitled to take Cenvat credit on the strength of original triplicate copy of invoices issued by the supplier. Further, I find that in appellants own case, the Hon'ble High Court of Bombay, any services availed by any manufacturer of excisable goods in the course of their business of manufacturing, appellant is entitled to take Cenvat credit. Therefore, the appellant is entitled to take Cenvat credit on rent-a-cab service as same has been used by them in the course of their business activity of manufacturing of excisable goods. In these circumstances, I hold that appellants are entitled to take Cenvat credit. Therefore, impugned order deserves no merits, hence set aside - Decided in favour of assessee.
-
2015 (2) TMI 921
Clandestine removal of goods - Mandatory penalty under section 11AC - Invocation of extended period of limitation - Held that:- It is the admission by the appellant that they have cleared inputs without payment of duty which resulted in shortage of inputs at the time of investigation on 18.3.2010. It is also a fact on record that on 10.4.09 when the investigation was done, that was in relation to the shortage of inputs. In these circumstances, I hold that extended period of limitation is rightly invoked.
When there is an admission of removal of inputs without payment of duty and that fact came in the knowledge of Revenue during the course of investigation. Therefore, the extended period of limitation is rightly invoked. Further, I find that appellant has paid only duty and not interest, hence as per the provisions of section 11 AC of the Act, appellants are required to pay penalty equivalent to duty. I also find that appellant has relied upon the decision of Rajasthan High Court in the case of Rituraj Pipes & Plastics Pvt. Ltd. (2008 (8) TMI 878 - RAJASTHAN HIGH COURT). The facts of the said decision are not relevant to the facts of this case as in that case there was shortage of inputs which was found during the course of investigation but in this case apart from the shortage of inputs, it is admission on the part of the appellant that they have cleared the inputs without payment of duty. In these circumstances, I do not find any infirmity in the impugned order - Decided against assessee.
-
2015 (2) TMI 920
Denial of CENVAT Credit - main noticee was purchasing cenvatable invoices from the registered dealers and availing cenvat credit thereof without receiving inputs in the factory premises - Penalty u/s 11AC - Held that:- penal provisions on the Respondent would be considered after examining all the facts and circumstances of the case in totality of the main noticee. So, while directing the case of the main noticee in de-novo adjudication, it is required to consider the case of the respondent. In view of that, we modify the impugned order to the extent that the adjudicating authority shall also consider the case of the respondent in de-novo proceedings. It is directed that the adjudicating authority during the de-novo adjudication would take into consideration the observation of the Commissioner (Appeals) as well as the submissions made by the learned advocate of the Respondent before the Tribunal. - Matter remanded back - Decided in favour of assessee.
-
2015 (2) TMI 919
Denial of CENVAT Credit - CENVAT Credit paid on the Furnace oil used in generation of electricity cleared to other units - Held that:- The present show cause notice dt.10.09.2007 was issued for the period from March 2003 to November 2003. In my considered view, when the demand of duty against the earlier show cause notice was set aside as time barred, thus, the demand of duty for the extended period of limitation, on the same facts in the present show cause notice cannot be sustained. The findings of the Tribunal in the appellant s own case for the earlier period would be squarely applicable in the present case. Hence, demand of CENVAT Credit to the extent of ₹ 11,92,394.00 along with interest and penalty is set aside is barred by limitation. In so far as demand of CENVAT Credit of ₹ 8,158.00 along with interest and penalty is upheld. Penalty imposed on the appellant No.2 cannot be sustained - Following decision of assessee's own previous case [2012 (7) TMI 603 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
-
2015 (2) TMI 918
Clandestine removal of goods - Shortage of stock - Invocation of extended period of limitation - Held that:- This is a case of clandestine removal of goods. Therefore, the normal period of limitation would not be applicable. It is supported by the decision of the Hon'ble Gujarat High Court in the case of Neminath Fabrics Pvt.Ltd. (2010 (4) TMI 631 - GUJARAT HIGH COURT). It is seen from the adjudication order that the case was made out on the basis of folding report, transport documents and miscellaneous papers as mentioned in the Annexure to the show cause notice. So, the submission of the appellant that the case was made out on the basis of statement, cannot be accepted. The appellant has not countered the documents as referred in the show cause notice as well as in the adjudication order. - No merit in the appeals filed by the appellants. Accordingly, the impugned order is upheld and the appeals filed by the appellants are rejected - Decided against assessee.
-
2015 (2) TMI 917
Cenvat credit on Outdoor catering Service and House Keeping Service - Welfare activities as mentioned in agreement or Covered under Input service definition as activities relating to business - Held that:- In our view, just because the agreement mentions these activities as "welfare", the same do not become welfare activities, as from the language of the agreement, it is clear that it is an obligation of the appellant company to provide each visiting personnel of M/s SMC, Japan, with furnished western style house with all the facilities including cooking facility. Therefore, in our prima facie view, these services would be covered by the "activities relating to business" as these activities have nexus with the manufacturing business of the appellant.
As emphasized by Hon'ble Bombay High Court in the case of Ultratech Cement [2010 (10) TMI 13 - BOMBAY HIGH COURT], for categorizing a service as 'input service' covered by Rule 2(l) of Cenvat credit Rule 2004, what is relevant is as to whether it has nexus with the manufacturing business of the appellant in contrast to the nexus with the manufacture of the final product in case of 'Input. Prima facie case in favour of assessee . The requirement of pre-deposit of the Cenvat credit demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed. - The stay applications are allowed.
-
2015 (2) TMI 916
Duty demand u/s 11D - Collection of excess duty from customer which was not mentioned in the invoice - whether the appellant have collected from their customer (PHED) an amount of ₹ 1,72,80,890/- towards excise duty which is excess of the excise duty mentioned in the invoices and which has not been paid to the Government and whether this amount alleged to have been collected by the appellant from PHED can be adjusted against their duty liability of ₹ 1,73,74 - Held that:- Under section 11D(1) every person who is liable to pay excise duty under this act or rules made there under and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this act or rules made there under, from the buyer of such goods in any manner as representing excise duty, shall forthwith pay the amount so collected to the Central Government.
Section 11D has to be read with section 12A and 12B. While section 12A provides that notwithstanding anything contained in this act or any other law for the time being in force, every person who is liable to pay excise duty on any goods shall, at the time of clearances prominently indicate in all the documents relating to assessment, sale invoice and other like documents, the amount of such duty which will form part of the price at which the goods are to be sold. Section 12B provides that every person who has paid the duty of excise on any goods under this act, unless the contrary is proved by him, shall be deemed to have passed on the full incidence of such duty to the buyer. Thus, when an assessee in the invoices issued by him to his customers mentions an amount as excise duty a presumption can be made that that amount had been recovered by him from the customer as excise duty and only in that case section 11D can be invoked if that amount had not been paid to the Central Government. In this case all the Central Excise invoices placed on record by the appellant excise duty payable is shown as nil. Therefore, merely from the contract terms that providing that the price at which the pipes are to be supplied shall be inclusive of all the taxes, it cannot be presumed that the price also included excise duty.
Impugned order demanding an amount of ₹ 1,72,80,890/- from the appellant under Rule 11D is not correct. The requirement of pre-deposit of this amount along with interest for compliance with the provisions of section 35F would result in undue headship to the appellant. The requirement of pre-deposit of the demand under confirmed section 11D along with interest is, therefore, waived for hearing of the appeal and recovery thereof is stayed - Stay granted.
-
2015 (2) TMI 915
Abatement of offence by exporter - held that:- Since the amount involved is well within the threshold monetary limit for entertaining the appeal before Tribunal, the appeal is dismissed under proviso to Section 129A (1) of the Customs Act, 1962 as not maintainable - Decided against appellant.
-
2015 (2) TMI 914
Waiver of penalty - Benefit under DFIA scheme announced in Foreign Trade Policy - License on the basis of exports - Dispute in export quantity - Held that:- The Applicant are claiming benefit under DFIA scheme on the basis of exports made by them against various shipping bills recorded as above. It is the contention of the Revenue that applying the norms, the quantity claimed to have been exported by the Applicants are incorrect. Hence, the benefit under DFIA Scheme cannot flow from the said exports. Whereas, the contention of the Applicants on the other hand is that the licensing authority, namely Directorate General of Foreign Trade has even though initially through their letter dated 12.12.2006 disputed the fact of export of the said goods, but later on scrutiny and verification closed the case against the Applicants, and in support they have placed letters issued by the DGFT in respective Appeals. Also, both sides agree that the benefit out of the said export is yet to be availed by the Applicants, a fact not disputed by the Revenue.
Therefore, at this stage, we are of the view that confirmation of penalty against the Applicants may not sound well. Their involvement and violation of the provisions of Customs Act would be examined only after necessary confirmation received from DGFT by the Customs department which would be considered at the time of disposal of the Appeals. At this stage we are of the opinion that the Applicants could able to make out a prima facie case for waiver of penalty imposed against each of them. Consequently pre-deposit of penalty against each of the Applicants is waived and its recovery stayed during pendency of the appeal. Decided in favour of appellants.
-
2015 (2) TMI 913
Restoration of appeal - Appeal dismissed for COD clearance - Held that:- Even though in terms of the apex Court order, permission from CoD is not required for pursuing the appeal before the appellate Tribunal, it has been held in a number of judicial pronouncements that the appellant should have filed for clearance from CoD and only in such cases the permission from CoD can be waiver. Inasmuch as the appellant has not filed any application before CoD for pursuing the appeal before this Tribunal, we are unable to permit the appellant to pursue the appellate remedy before this Tribunal. - Restoration denied.
............
|
9911796707
