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Case Laws
Showing 481 to 500 of 1237 Records
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2014 (3) TMI 759
Power of reopening of assessment u/s 147 Explanation 1 r.w section 143(1) of the Act - Advance tax paid and considered it as capital receipt – Held that:- The decision in CIT vs. Kelvinator (India) Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA] followed - there was no tangible material and that the mere circumstance that advance tax to the tune of Rs.27.6 lakhs was paid did not amount to admission by him - a valid reopening of assessment has to be based only on tangible material to justify the conclusion that there is escapement of income - the note forming part of the return clearly mentioned and described the nature of the receipt under a non-compete agreement - The reasons for the notice u/s 147 nowhere mentioned that the revenue came up with any other fresh material warranting reopening of assessment – thus, mere conclusion of the proceedings u/s 143(1) ipso facto does not bring invocation of powers for reopening the assessment – the order of the Tribunal upheld – Decided against Revenue.
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2014 (3) TMI 758
Smuggling - Consideration of Anticipatory bail u/s 438 Cr.P.C. – offences alleged u/s 420, 417 & 465 IPC & 135 of Customs Act - Three prior cases of smuggling Red Sander wood – No co-operation earlier by accused - Held That:- Petitioner is already involved in three cases of smuggling of red sanders - In two cases, adjudication orders were passed - The department imposed on him a penalty - The present 4th case relates to smuggling of red sanders wood - Interrogation of several persons leads to accused - Accused need to be interrogated - There is no cooperation from him - Already he is involved in similar cases - The Court has to consider the seriousness of the accusations, availability of incriminating materials, its nature, magnitude of the offence alleged, past activities and prior cases as against the accused and the need for his custodial interrogation - When these factors are as against the petitioner then it will not be a fit case for grant of anticipatory bail - In this case, there is strong prima facie case for the department as against the petitioner - Not a fit case for grant of anticipatory bail - Decided against accused.
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2014 (3) TMI 757
Waiver of pre deposit - Valuation - import from parent company (related person) - case of the Revenue is based on a document called "Fragrance Ingredients Business Unit" (FIBU) Price List. - appellant contended that FIBU price list and prices for samples cannot be a basis for deciding the value of regular imports which involve large quantities - Held that:- pre-deposit of Rs.20 lakhs would be sufficient for admission of the appeal and it is ordered accordingly. We direct the applicant to deposit Rs.20 lakhs within a period of eight weeks from today. Subject to such pre-deposit, there shall be stay on collection of balance dues arising from the impugned order till the pendency of the appeal - Conditional stay granted.
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2014 (3) TMI 756
Winding up - intervention by the ICICI Bank as fresh applicant showing ignorance of earlier winding up petition by BNYM as a trustee for some holders of unsecured foreign currency convertible bonds issued in 2007 by GOL Offshore. - Applicant (ICICI bank) sought reliefs inter alia in relation to 352 sq ft jack-up rig known as Rig V-351 or Rig Somnath. - Held that:- In my view, what ICICI Bank seeks is the creation of an additional security in its favour over Rig V-351, although there is no such pre-existing security, and although ICICI Bank is otherwise sufficiently secured for any claim that it might have against GOL Offshore. - ICICI Bank’s claim is not yet due.
There is the matter of the peculiar cast of ICICI Bank’s prayers, expansive in scope and far-reaching in consequence. They seek nothing less than a complete sequestration of the rig to ICICI Bank to the exclusion of all others. Mr. Dwarkadas and Mr. Madon may not be entirely incorrect in saying, therefore, that the present application is mala fide and mischievous, and is nothing but an attempt to hijack the jack-up rig. In this scenario, where it does not appear that ICICI Bank’s application has any semblance of bona fides, and is, prima-facie, nothing but an attempt to steal a march on a large body of creditors, both secured and unsecured, I do not see why I should exercise any discretion at all in favour of ICICI Bank. It is not enough, in my view, for an applicant to show that it is a secured creditor and to therefore claim intervention as a matter of right.
Were that so, there would be no question of discretion under Section 557 of the Companies Act; every creditor would be instantly legally entitled to intervention. Where an application is found not to bona fide, that discretion cannot be exercised. So it is in this case. The application must, in my view, be dismissed in its entirety. Such an applicant, wholly wanting in bona fides, cannot claim the exercise of discretion in its favour.
Application of ICICI Bank dismissed with Cost. - ICICI Bank shall pay to BNYM and GOL Offshore each costs quantified at Rs.2.5 lakhs. - Decided against the petitioner.
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2014 (3) TMI 755
Interest of refund - Delay in refund - Whether in view of the aforesaid legal position CESTAT is correct in law in allowing the interest on delayed refund u/s.11BB of the Central Excise Act, 1944 - Held that:- Explanation to Section 11BB of the Act provides that where any order of refund is made by the Commissioner (Appeals) or the Appellate Tribunal or any Court, the order passed by such Appellate Authority or Court shall be deemed to be an order passed under subsection 2 of Section 11B of the Act for the purpose of this Section. It is, therefore, clear that the appellate order allowing the refund of duty relates back to the order of the original authority and therefore by virtue of substantive Section 11BB of the Act, interest on the refund amount has to be paid from the date immediately after three months from the date of receipt of the application to the original authority till the refund of such duty - No substantial question of law arises - Decided against Revenue.
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2014 (3) TMI 754
Denial of refund claim - Unjust enrichment - Whether the refund of duty deposited during investigation is hit by the doctrine of unjust enrichment - Held that:- there are concurrent findings of fact by the Commissioner (Appeals) & the Tribunal that that the respondent assessee has paid the Central Excise Duty of ₹ 54,339/and ₹ 39,483/, after clearance of the excisable goods. Moreover, this payment of duty was on insistence of Anti Evasion Branch of the Central Excise Department. Thus, it was held that the burden of duty was not passed on to its customers - no substantial question of law arises from the impugned order of the Tribunal - Decided against Revenue.
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2014 (3) TMI 753
Condonation of delay - Held that:- matter of litigation where certain proceedings are going on before different authorities, it was required to keep the relevant records in a manner to locate them without loss of any time. Moreover, once the appellant came to know on 23rd September, 2012 from the Superintendent that their appeal has been dismissed, they were at liberty to approach the Department and ask for a copy of the records available if any, with the Department so as to enable them to file the appeal as early as possible but I do not find any such attempt made by the appellant. They had not addressed even any letter to the Department to hand over a copy of the order-in-Appeal. I do not find that the reasons given for the delay in this case are the sufficient cause. Though delay is stated to be due to unavoidable circumstances and genuine difficulties, the appellant did not show a diligence and commitment in prosecuting the matter in time. - Condonation denied.
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2014 (3) TMI 752
Extension of Stay order - Jurisdictional Superintendent has issued a letter dated 11.11.2013 directing the appellant to make payment of the interest and penalty on the ground that in view of the amended provisions of section 35C of the Central Excise Act, 1944, the total period of stay can be only 365 days and not beyond - Held that:- appellant has already paid the duty amount and stay is in respect of only interest and penal liability. In these circumstances, the department is restrained from proceeding with any coercive measures for recovery of the dues adjudged against the appellant - Decided in favour of assessee.
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2014 (3) TMI 751
Denial of Cenvat Credit - Bill of entry was endorsed in favour of the Thane unit by the Pitampur unit - Validity of endorsed of bill of entry - Held that:- there is no dispute that the imported consignments has not suffered CVD or the said consignment has not been received at the appellant's premises at Thane. The only dispute is that the bill of entry was endorsed by the Pitampur unit to the Thane unit, since the foreign supplier had indicated the addressed of the Pitampur unit in the relevant documents. Since bill of entry is a specified document, on the strength of which the Cenvat Credit can be availed, an endorsed bill of entry is also an equally valid document for availing credit. By endorsement only the name of the consignee is changed - credit can be availed on the strength of endorsed bill of entry also - Following the decision of Eupec-Welspun Pipe Coatings India Ltd. case [2009 (12) TMI 561 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2014 (3) TMI 750
Supply of good under ICB for mega power project - Sub-contractor - Project authority certificate - Denial of benefit of Notification No. 06/2006-CE dated 01/03/2006 - Penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 - Held that:- In the annexure to the certificate, the appellant's name figures as a sub-contractor for supply of EOT Cranes. Therefore, the condition that the goods should be supplied against International Competitive Bidding procedure is clearly satisfied.
Vide Notification No. 12/2012-Cus, goods falling under CTH 9801 is exempt if the same is supplied for any Mega Power Project of capacity of 1000 MW or more subject to a certification by the Joint Secretary to the Government of India in the Ministry of Power. The said certificate is available on record and it is clearly stated that BARH Super Thermal Power Project has a capacity of 1000 MW or more and satisfies all other requirements for grant of exemption. Therefore, we are satisfied that the appellant has complied with the terms and conditions of the exemption notification - Decided in favour of assessee.
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2014 (3) TMI 749
Clearance of goods at concessional rate of duty - SSI Exemption - Notification No. 09/2003-C.E. dated 01.3.2003 - Held that:- appellants when they received the order for implementation of turn key projects had intimated the department and submitted the cost structure to the department. The assessable value of the transformers was determined as per CAS-4 by a qualified Chartered Accountant and this was submitted on 31.7.2004 to the officer in respect of his letter dated 22.4.2004. Nevertheless, show-cause notice was issued on 12.8.2005 invoking suppression and mis-declaration and proposing to revise the assessable value and demand of differential duty with interest and imposition of penalty as above. We find that what the department has done is to add the freight element from the factory gate to the sites in respect of transformers by invoking Rule 7 read with Rule 11 of the Central Excise Valuation Rules and also calculate the assessable value on the basis of transformer oil requirement indicated in the contract and adopt the one whichever is higher. There is no finding or evidence to show that actual quantum of oil used was higher than what was indicated in the CAS-4 and why the Chartered Accountant’s certificate cannot be accepted.
Important statutory aspects regarding limitation as well as reasons for inclusion of elements of cost have not been given and hence cannot be sustained. In these circumstances, we find that the Revenue has not made out a case for increasing the assessable value on the ground of suppression, mis-declaration or on merits - Decided in favour of assessee.
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2014 (3) TMI 748
Reversal of CENVAT Credit availed on service tax when inputs are removed as such - Whether the appellant is required to reverse CENVAT credit of service tax paid on CHA service and commission agent service attributable to the imported products which were sold ‘as such’ by the appellant as replacement for worn out parts in the market - Held that:- when the Cenvat availed inputs or capital goods are removed from the factory of the assessee as such, sub rule 3(5) provides for recovery of the amount of the Cenvat credit availed in respect of such inputs or capital goods and there is no provision to reverse the credit of service tax availed in respect of such goods or capital goods. Following the judgment of the Tribunal in the case of Chitrakoot Steel & Power Ltd. Vs. CCE, Chennai [2007 (11) TMI 135 - CESTAT, CHENNAI], I hold that the impugned order is not sustainable - Decided in favour of assessee.
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2014 (3) TMI 747
Denial of refund claim - Bar of limitation - The consignee viz., PWD, Government of Karnataka was not aware of, nor they indicated in the purchase order that they would be eligible for the duty exemption benefit in terms of Notification No.108/95-CE dated 20.8.1995. - Whether they can claim the refund of Central Excise duty remitted by them but not paid by PWD though the bill was raised including Central Excise duty - If the refund of duty is to be claimed, can it be claimed by them or it has to be claimed by the consignee. - Held that:- appellant failed to show anywhere in the correspondences made by the appellant to the department that there was a specific request to sanction refund of the amount paid.
It has to be noted that as early as 3.3.2006, PWD had written to Deputy Commissioner stating that they would not be paying the amount to the appellant and there was a delay in producing the certificate. The proper course for the appellant to follow was to file an appeal against the decision communicated to them by the Assistant Commissioner on 24.11.2005 stating that since they have not fulfilled the conditions under Notification No.108/95 they are not eligible for the refund.
This was a decision communicated to the appellant, which could have been challenged and they did not do so. As early as 3.3.2006 PWD made it clear that they would not be paying the amount. A request by the third party or a customer to the department requiring the department to reimburse the amount of duty paid cannot be considered as refund claim at all - there is not even a single line stating that ‘I may please be granted refund of Central Excise duty’. Under these circumstances the rejection of refund on the ground of limitation by the lower authorities cannot be faulted with - Decided against assessee.
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2014 (3) TMI 746
Duty demand - Contravention of provisions of Rule 8(3A) of Central Excise Rules, 2002 - Utilization of Cenvat credit during 8/06 to 2/07 without clearing outstanding amount including interest - Held that:- Wordings in the Rule such as duty for each consignment at the time of removal without utilising the Cenvat credit refers to clearances of goods to be made during suspension period and not to the clearances already made in the past. Therefore I find that restriction imposed in the rule not to utilise Cenvat credit is applicable to clearances to be made during suspension period and it is not applicable to payment of outstanding amount of duty relating to past clearances - As rightly observed by the Commissioner (A), the provisions of Section 8(3)(A) are not attracted in respect of the amounts payable during the default period but the consignment-wise payment of duty and non-utilisation of CENVAT credit are applicable only in respect of clearances which are made during the period default continues - Decided against Revenue.
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2014 (3) TMI 745
Denial of CENVAT Credit of SAD - removal of inputs as such without reversing SAD - Mala fide intention of assessee.- Held that:- When goods are imported SAD has to be paid except in some special cases. Where SAD is paid the importer can take credit of such duty under Cenvat Credit Scheme if he is a manufacturer, consuming the imported goods in his manufacturing process. There is also a provision that if the importer sells the goods on payment of VAT, he can claim refund of such SAD paid, from Customs Authorities by producing evidence of VAT paid. In this case goods were sold and not consumed in manufacture. So the latter course of action should have been taken for getting relief from the incidence of duty which need not be borne by the respondents. This is case of choosing wrong course of action rather than attempt at evasion of duty - Decided against Revenue.
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2014 (3) TMI 744
Waiver of pre deposit - Reversal of CENVAT Credit - Held that:- Appellant had made out a prima facie case in their favour since before the decision of the Hon’ble Supreme Court having the view that interest is payable from the date of availment of cenvat credit and even it was not utilized interest is not payable was not available - Following decision of UOI v. Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court] - Stay granted.
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2014 (3) TMI 743
Waiver of pre deposit - Payment of differential duty - Held that:- Appellants have been paying the differential duty from time to time and showing the details thereof in the returns filed by them and therefore extended period could not have been invoked. When the extended period could not have been invoked for recovery of the demand, the question of demanding interest also does not arise - wherein a view was taken that for demanding interest also limitation under Section 11A will be applicable and therefore, if the suppression, fraud, mis-declaration, etc., are not proved, interest also cannot be demanded - appellant has made out a prima facie case for stay - Stay granted.
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2014 (3) TMI 742
Duty demand - Cash discount policy - While assessee were paying differential duty on the sale at the factory gate, no duty was paid on the cash discount not availed by the buyers at depot, resulting in short payment of duty - Held that:- The difference price has to be considered as representing an element of interest on account of delay in payment and unless it is established that such difference in price is so vast that in actually amounts to charging part of the price in the form of interest, the same cannot be rejected, and shall be the price applicable even in respect of those cases where cash discount is not availed of - Following decision of CCE, Ahmedabad v. Arvind Mills Limited [2006 (11) TMI 230 - CESTAT, MUMBAI] - Stay granted.
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2014 (3) TMI 741
100% EOU - Quantum of clearance of the goods in DTA - Held that:- appellant before Commissioner (Appeals), had restricted their arguments only in respect of penalty and interest and have nowhere raised any ground challenging the confirmation of demand against them, but in view of the clear facts available in the present case and the legal issue having been decided till Apex Court, we deem it fit, in the interest of justice, to allow the appeal last to raise the ground challenging confirmation of duty - Following decision of AMITEX SILK MILLS PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, SURAT-I [2005 (10) TMI 128 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2014 (3) TMI 740
Whether the Courts below including High Court were justified in staying the on-going disciplinary proceedings pending conclusion of the trial in the criminal case registered and filed against the respondents - Held That:- While there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defense before the criminal Court - Gravity of the charge is not by itself enough to determine the question unless the charge involves complicated question of law and fact - That requirement does not appear to be satisfied in an adequate measure to call for an unconditional and complete stay of the disciplinary proceedings pending conclusion of the trial - The incident as reported in the FIR or as projected by the respondents in the suits filed by them does not suggest any complication or complexity either on facts or law - the respondents have already disclosed the defense in the explanation submitted by them before the commencement of the departmental enquiry in which one witness has been examined by each of the Enquiry Officers.
It is not fit to vacate the said order straightaway - Interests of justice would be sufficiently served if we direct the Court dealing with the criminal charges against the respondents to conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order - We hope and trust that the Trial Court will take effective steps to ensure that the witnesses are served, appear and are examined - The Court may for that purpose adjourn the case for no more than a fortnight every time an adjournment is necessary - We also expect the accused in the criminal case to co-operate with the trial Court for an early completion of the proceedings - We say so because experience has shown that trials often linger on for a long time on account of non-availability of the defense lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the grounds , all that needs to be avoided - In case the trial is not completed within the period of one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed and concluded by the IO concerned - The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the order - These appeals allowed in part and to the extent indicated above - The parties are left to bear their own costs – Decided against appellant.
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