|
Advanced Search Options
Case Laws
Showing 481 to 500 of 1478 Records
-
2016 (3) TMI 1004
Seeking release of payments due to the petitioner along with suitable interest - Execution of the works in favour of the first respondent to the tune of ₹ 67 lakhs - Services carrying on are cable laying works and rehabilitation of external plant to various parties - Held that:- In the absence of any averment stated in the affidavit, filed in support of the writ petition that the petitioner got the leave from BIFR for filing the writ petition for claiming a sum of ₹ 67,00,000/-, the writ petition cannot be maintained at this stage. That apart, when the contract is between the first respondent and the petitioner, who is a sub contractor of the first respondent, the claim made by the petitioner to the tune of ₹ 67,00,000/- cannot be made in the writ petition. the contract was only between the first respondent and the BSNL and the petitioner is not a party to the said contract. Further, there is no clause in the contract between the first respondent and the petitioner with regard to the payment of Service Tax by the petitioner. In such circumstances, in the absence of any contract between the petitioner and the first respondent with regard to the payment of service tax and the reimbursement of the same, the said issue cannot be gone into in the writ petition. Therefore, the claim made by the petitioner can be decided only by a competent civil Court and not under Article 226 of the Constitution of India. - Decided against the petitioner
-
2016 (3) TMI 1003
Seeking direction for refund and release of security deposit of ₹ 24,21,125/- - Amount of Service tax paid by Corporation on behalf of the petitioner - Petitioner under the contract appointed as sole agent for transportation of parcels to render other allied services and to operate courier services through the buses of the Corporation - Held that:- even if the aspect is apart that the petitioner has challenged communication dated 30.09.2013 after unexplained gap of three years, there is no gainsaying from the facts and the outlines of the controversy recorded above that the dispute between the parties is in the realm of the contractual obligations flowing from the service contract given to the petitioner by the Corporation. Thus, it is in the arena where the writ jurisdiction would not be attracted. Going into the case of the petitioner and the grievance raised by him would necessarily involve adjudicating upon the contractual terms and conditions and the mutual obligation between the parties arising therefrom with reference to entitlement of the Corporation to claim the amount from the security deposit as well as its justifiability or otherwise of the claim of the petitioner to seek refund/release of the said amount. Jurisdiction under Article 226 is not the appropriate remedy to be invoked for the grievance and the dispute of the above nature which stem from contract between the parties. Therefore, this petition is not entertainable and it does not qualify for any relief. - Petition dismissed
-
2016 (3) TMI 1002
Recovery of Service tax from service recipient - Petitioner contended that Corporation has accepted compromise formula so it now cannot recover any additional charges, either in the guise of service tax or escalation clause - Held that:- the offer letter does not make any mention of service tax and must therefore be seen out side of such an offer. What is concluded refers to the rental charges and not the service tax. The offer letter is silent and refers to rental payable by the petitioner to the Corporation. If other than the rental charges, there is any other tax liability upon the petitioner, he must separately pay the same. Under the circumstances, the Corporation must be allowed to recover such charges on the computation of unpaid rentals to be paid by the petitioner to the Corporation as per offer letter. Also the Corporation shall be entitled to recovery of service tax also with respect of zones No.1 and 2 and there shall be no fresh computation of liability. - Decided against the petitioner
-
2016 (3) TMI 1001
Period of limitation - Condonation of delay of 223 days - Beyond the statutory time limit of three months and also beyond the condonable period of a further three months provided under Section 85 of the Finance Act, 1994 - Held that:- by following the decision of the Division Bench in the case of Albert & Company Pvt Ltd vs Commissioner of Service Tax, Chennai [2014 (3) TMI 655 - MADRAS HIGH COURT], the first respondent has rightly dismissed the appeal on the ground of limitation, since the first respondent does not have the power to condone the delay beyond the period of three months, as provided under Sec.85 of the Finance Act 1994. - Decided against the appellant
-
2016 (3) TMI 1000
Charge of corruption against the Superintendent of Central Excise, Service Tax Cell, Chennai, Commissionerate - Alleged demand as well as acceptance of tainted money on the part of the appellant/accused - Found guilty under Section 7 and Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 - Held that:- by way of examining the defacto complainant viz., PW2 the prosecution has clearly proved the demand of bribe alleged to have been made by the accused as well as acceptance of the same. The evidence given by PW2 has been clearly corroborated by decoy witness viz., PW3. Further the evidence given by PWs.2 and 3 have been clearly corroborated by PW4, trap laying officer. Apart from their evidence, Scientific Analyst has also clearly established the case of the prosecution. Non marking of white cover as well as non playing of micro chip are not fatal to the case of the prosecution and those things are nothing but a piece of evidence and the same cannot be construed as a sole piece of evidence in the present case, since in the present case, both demand as well as acceptance of tainted money on the part of the accused have been clearly proved by the prosecution. Therefore, the contentions put forth on the side of the appellant/accused cannot be a basis for disbelieving the case of the prosecution.
Defacto complainant has given picturesque evidence to the effect that the appellant/accused has demanded and accepted tainted money of ₹ 25,000/- and since the said vital aspects have been clearly established on the side of the prosecution, it is very clear that the appellant/accused is liable to be convicted under the sections mentioned in the charge. The trial Court after considering the replete evidence available on record has rightly found the appellant/accused guilty under the sections mentioned in the charge. Therefore, there has neither found any error nor illegality in the convictions and sentences passed by the trial Court. - Decided against the appellant
-
2016 (3) TMI 999
Imposition of penalty - Service Tax liability along with interest on the service rendered under the category of Installation & Commissioning Services - Held that:- the penalty imposed on the appellant is unwarranted as the Service Tax liability and interest thereof was paid by the appellant before the issuance of show-cause notice. Provisions of Section 73(3) of the Finance Act, 1994 would apply, which is settled by the judgments of Tribunal. Accordingly, the impugned order imposing the penalties is liable to be set aside.
Liability of Service tax from 10.09.2004 - Construction Services and Commercial & Industrial Services - Construction of new retail outlets and its related works, supplying all the materials involved for completion of the work under the contract and were to be paid as per rate agreed upon - Held that:- the job executed by the appellant would be a ‘works contract'. By relying on the judgment of Hon'ble Apex Court in the case of Commissioner, Central Excise & Customs Versus M/s Larsen & Toubro Ltd. and others [2015 (8) TMI 749 - SUPREME COURT], no Service Tax liability arises under any services for the work/job executed under Works Contract Services. Therefore, demand of Service Tax under ‘Commercial or Industrial Services' is liable to be set aside. Consequent penalties imposed are also set aside. - Appeal disposed of
-
2016 (3) TMI 998
Refund claim rejected - bar of limitation - Relevant date - rejection on account of limitation as in respect of the period April, 2003 to June, 2004, the refund claim was filed on 20.10.2007 - Held that:- Definition of relevant date as given in clause (a) of Explanation B to Section 11B in respect of export rebate claims, cannot be applied to Rule 5 refund claims. There is no other clause of Explanation B to Section 11B which is applicable to the refund claims under Rule 5 of the Cenvat Credit Rules. A limitation prescribed in law always has two components - the period of limitation during which the application is to be filed or something is to be done and the date from which the limitation period is to be counted. Without prescribing the relevant date, a statutory provision prescribing limitation period is meaningless. Since, the second component of the limitation i.e. the relevant date from which the limitation period is to be counted is missing in Clause 6 of the Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002, thus in view the limitation provision in this notification is meaningless. See M/s Deepak Spinners Ltd. Versus CCE, Indore [ 2013 (11) TMI 1221 - CESTAT NEW DELHI ] - Decided in favour of assessee
-
2016 (3) TMI 997
Eligibility of CENVAT credit - fake invoices - whether the four invoices in question on the basis of which the appellant has availed the cenvat credit are genuine invoices or fake invoices - Held that:- the investigation by the department is totally faulty and defective. The department did not bother to verify the particulars contained in the invoices submitted by the appellant by visiting the premises of M/s. Annapurna Impex Pvt. Ltd. The department has conveniently recorded the statement of one office attendant Shri Purshottam Lal, to make the basis of the entire case and further, the statement of Shri Purshottam Lal was recorded on 18.5.2005 whereas the invoices involved in this case pertain to much earlier period. It is also pertinent to note that the payment to M/s. Annapurna Impex Pvt. Ltd. was also made by cheques by the appellant. As per the Evidence Act, the onus to prove that the invoices on which the appellant has taken cenvat credit are fake and invalid, was on the department and the department failed to prove the same by bringing on record any credible and convincing evidence. So much so, the appellant was not even allowed to cross-examine the office attendant whose statement was the only basis for framing the appellant. Therefore, the respondent has failed to establish the charge against the appellant.
Besides this the entire demand in this case is also time barred. The impugned show cause notice was issued on 17.10.2007 pertaining to the invoices dated 5.2.2004, 17.3.2004, 22.6.2004 and 25.3.2005, which is beyond the normal period of one year. Further, when the appellant has been filing the relevant ER-1 returns regularly and disclosing the details of these invoices on the basis of which the credit was availed, then it cannot be said that the appellant has wilfully suppressed the material fact from the department so as to invoke the extended period of limitation. Therefore, in my view, the entire demand is time barred. Further, the question of penalty does not arise when the demand is time barred. - Decided in favour of assessee
-
2016 (3) TMI 996
Benefit of Notification No.24/1991-CE dated 25.07.1991 and 5/1993-CE dated 28.02.1993 denied - validity of the certificate towards installed capacity of the factory - Held that:- In R.A. Cement Pvt. Ltd. (1999 (7) TMI 619 - CEGAT, NEW DELHI ) a similar set of facts were examined by the Tribunal. The assessee claimed certain concessions based on certificate issued by Director of Industries. Certain facts against the claim of the assessee was brought to the notice of the Directorate of Industries who neither cancelled the certificate nor withdrew it. In such situation, it was held that the Department cannot deny the concession claimed based on such certificate. In Suvarna Polymers [2000 (4) TMI 71 - CEGAT, CHENNAI ] The Tribunal held that when the Director of Industries considered the objections raised by the Department and re-conformed the Certificate it cannot be said that the certificate was obtained by fraud. On careful consideration of submissions made by both the sides and the materials on record, we find that the impugned order is not sustainable. Accordingly, the same is set aside. - Decided in favour of assessee
-
2016 (3) TMI 995
CENVAT credit on capital goods removed as waste and scrap - Whether the capital goods, if removed, without installation and without putting to use, as waste and scrap will attract duty equal to the amount of credit taken or the duty on the transaction value of the machine sold as waste and scrap - Held that:- The facts is not under dispute that the appellant have availed the Modvat Credit on capital goods which was neither installed in the factory of the appellant nor used for the manufacture of final product. The capital goods were without putting into use cleared showing as waste and scrap. The provision for duty liability on removal of capital goods is provided under Rule 57S of erstwhile Central Excise Rules 1944 which clearly provided that if the capital goods are removed without being used the excise duty payable shall in no case be less than the amount of credit that has been allowed.
Intention of the legislature is very clear that when the removal of capital goods is without being used is different from the capital goods sold as waste and scrap that means the term sale of capital goods as waste and scrap then the excise duty shall be payable on the transaction value of the waste and scrap. It is to be kept in mind even after use for some time if the capital goods is sold then also the excisable duty is payable in terms of Clause (b) after allowing the deduction of 2.5% of credit taken for each quarter. Therefore when the capital goods is not installed or has not been used its clearance will clearly fall under the clause (a) of Sub-Rule (2) and not under Clause (c). It is therefore of the view, that the appellant is required to pay excise duty on the capital goods cleared without being used in terms of clause (a) of Sub-rule (2) of Rule 57S of the Central Excise Rules, 1944. Accordingly, equal amount of Cenvat Credit which has been availed shall be payable by the appellant. Commissioner by careful application of mind, after interpreting the provisions of rule 57S(2) held that the removal of capital goods in the present case is covered under Sub-rule (2)(a). - Decided against assessee
-
2016 (3) TMI 994
Dismissal of refund claim - refund of service tax paid on the said input services used for manufacture and export of final products - denial of cenvat credit - Held that:- The definition of input service as contained in rule 2(l) very much covers all the input services on which Cenvat Credit is claimed and all the services are directly or indirectly related to business. It is a fact that the appellant are 100% EOU. They received the input service from various services providers and those services providers raised invoices on the appellant for service charges along with service tax leviable thereon. The appellants have claimed refund of service tax paid on the strength of said invoices and these facts are undisputed. In view of this admitted position, the appellants are entitled to refund of service tax paid on the said input services used for manufacture and export of final products. It has been the policy of the government since inception that the export should be tax free. In other words, the object of the government is to export the goods and services and not the taxes. If the refund of service tax paid on input services is not allowed to the appellant then the said taxes would have to be built in the cost of the final products and thus it would lead to export of taxes which are against the policy of the government. - Decided in favour of assessee
-
2016 (3) TMI 993
Demand of excise duty on account of reversal of credit on duty paid finished goods at the depot - demand of excise duty on account of shortages of raw material at the factory both for the period 1999-2000 and 2000-01 - demand time barred - Held that:- The base oil being a petroleum product, its weight and volume is dependant upon temperature and density. At the time of receipt in the factory, base oil is emptied in tank and the procedure for determining the weighment is by deducting the gross amount of weight of tanker including the oil and reducing therefrom the weight of the tanker after discharging the oil considering the density and temperature. This method sometimes results into shortage or excess quantity of base oil to the extent of 1 to 2% and this is well recognized within the petroleum industry for petroleum products whereas in this case, the shortage as reported in annexure A to form 3CD during the period 2000-01 has only been to the extent of 0.6% of the total consumption which can arise on account of variation in temperature, variation in viscosity while dip reading, temperature and density at the time of measurement of stock. In this regard, the appellant referred to circular No. 55/89-CX.8 dated 15.12.1989 which provides for condonation of shortage and handling losses of petroleum products in a refinery and in the method of determining the quantities of petroleum products for the purpose of accountal in statutory excise records.
Shortage of finished goods at the factory and depots is concerned, the appellant has debited the duty on its own and informed the department vide various letters dated 9.1.2000, 12.6.2000 and 13.2.2001. The goods sold from depot are excisable goods on which excise duty has already been paid and this fact has not been rebutted by the department either in the show cause notice or even in the order-in-original. Therefore, keeping in view the facts and circumstances and the evidence on record, I am of the considered opinion that the shortages found are very minor in nature, i.e. 0.6% which is well accepted in petroleum products as observed in the judgments cited above. Also find that in the show cause notice also, there is no allegation that there is clandestine removal of goods by the appellant.
Further, as far as limitation is concerned, the entire demand appears to be time barred as it relates to financial year 1999-2000 and 2000-01 whereas the show cause notice was served on 26.3.2004 on the basis of shortages of raw material and finished goods as shown in form 3CD i.e. the report under the Income Tax Act, which is a statutory report and the appellant has produced the same before the audit party. - Decided in favour of assessee
-
2016 (3) TMI 992
Entitlement to claim cenvat credit on barbed wire being accessory to the transmission tower - whether the said accessory falls in the definition of ‘input' as contained in Section 2(k) of the Cenvat Credit Rules, 2004? - Held that:- All the conditions are fulfilled in this case inasmuch as barbed wire is essentially required for smooth operation of the transmission tower and secondly, as per the terms and conditions of the agreements, it is necessary for the company to supply barbed wire along with transmission tower and thirdly, the description list of the goods sold is attached with the invoice copy, which clearly shows that the value of the barbed wire has been included in the assessable value and the duty has been paid on the whole amount. Since all the conditions are fulfilled, therefore in my considered opinion, the respondent is entitled to the credit of duty paid on barbed wire as held in the case of Ultrapack [2005 (4) TMI 438 - CESTAT, BANGALORE ].
Further, as find that the respondent supplied barbed wire to all its customers and as per the terms and conditions of the agreement, the price of barbed wire is included in the assessable value. The learned counsel for the respondent placed reliance in the case of Coca-Cola India Pvt. Ltd. vs. CCE, Pune [ 2009 (8) TMI 50 - BOMBAY HIGH COURT ] wherein held that burden of service tax may be borne by the ultimate consumer and not by any intermediary and if the value of the input or input service has been included in the assessable value, then credit should not be denied - Decided in favour of assessee
-
2016 (3) TMI 991
Confirmation of demand and penalty on the quantity of goods shown in the respective small chits/papers - Held that:- Merely because the entries mentioned in the rough chits did not tally with the production/clearance register would not by itself lead to a conclusion that the quantity of goods mentioned in those private chits were clearance without payment of duty. On the other hand, on scrutiny of the reconciliation statement submitted by the appellant during the course of hearing, Revenue has fairly accepted that approximately 50% of the quantity mentioned in the private chits had been cleared on payment of duty as it conforms to the respective Central Excise invoices issued during the relevant period. Also, as find from the statements of two customers, namely, Shri Amar Kasera and Shri Sunil Kr.Agarwal recorded by the department that they have purchased the goods against excise invoices and the quantity mentioned in the chits were not received by them. In absence of cogent and corroborative evidences showing production and removal of goods without payment of duty, entries reflected in private chits cannot itself be a ground for confirmation of demand. Therefore, the confirmation of demand on this count is liable to set aside.
Demand on cancelled invoices - Held that:- Find force in the contention of the ld.Advocate for the Appellant. In his statement dated 30.11.2004 Shri Ravinder Prasad, Director of the appellant in response to question No.13 has explained that in view of the fact that the levy was new and the appellant had no experience in the field of excise, therefore, mistakes occurred in writing the invoices resulting into frequent cancellations. This statement has not been rebutted by the department by making necessary investigation with the consignees mentioned in the respective cancelled excise invoices. In absence of substantial evidences of clearance of goods against cancelled invoices, it is difficult to accept that the appellant indulged in clearance of goods without payment of duty against cancelled invoices. Therefore on this count also the confirmation of demand fails.
Demand on Oxygen gas cleared in the year 2002-03 - Held that:- the appellant themselves had admitted clearance of the Oxygen gases after March, 2003 against the agreement dated 15.03.2003 which has been confirmed by the purchaser Shri Deepak Kr.Agarwal in his statement dated 18.01.2005. In the said statement Shri Deepak Kr.Agarwal has categorically stated against question No.3 that he is related with the appellant from 15th day of March, 2003 and they have been purchasing gases only on the basis of agreement dated 15.03.2003. Therefore, in absence of evidences that the appellant earlier also sold gases without payment of duty, it is difficult to accept the allegation of the Revenue that on the basis of the said agreement dated 15.03.2003 demand could be raised for earlier period also. Hence on this count also the confirmation of demand fails.
Considering that the appellant has admitted certain liability and not pleaded about non-imposition of penalty against confirmed undisputed liability, therefore, penalty under section 11AC would remain against the confirmed undisputed liability. But the appellant would be entitled to discharge 25% of the penalty subject to fulfillment of the conditions laid down under section 11AC
Further, the redemption fine imposed by the adjudicating authority is too harsh. The redemption fine is thus reduced from ₹ 1.00 Lakh to ₹ 75,000/-(Rupees Seventy Five Thousand only). - Decided partly in favour of assessee
-
2016 (3) TMI 990
Validity of policy framed for classification of importers of poppy seeds - Policy framed by the government in categorizing the importers in Category-A and Category-B for importing poppy seeds from Turkey - Held that:- by the impugned notification, categorizing the importers in two categories, that is, A and B, is withdrawn by the government and the government has decided to treat all the applicants in one category. Therefore, the challenge to the policy becomes infructuous. - Appeal disposed of
-
2016 (3) TMI 989
Applicability of Section 114A and 28AB of the Customs Act, 1962 to the imports - Medical equipment imported for use in the diagnostic centre cleared without payment of duty - Availed exemption from payment of customs duty under Customs Notification No.64/88 dated 1st March, 1988 on the strength of certificate issued by Director General of Health Services - Held that:- on the date of import of the seven consignments by the Petitioner, i.e. March 1990 to December 1992, neither Section 28AB of the Act nor Section 114A of the Act existed in the statute. It is not the case of the Department that these provisions, introduced with effect from 28th September 1996, had retrospective operation. Therefore, it is clear that the said two provisions could not be applied to the Petitioner for the non-compliance with the conditions attached to under Notification No. 64/88. In law there is no denial by the Department that the said two provisions did not exist in the statute at the time of import of the seven equipments by the Petitioner. In other words, the Department is unable to deny that neither Section 114A nor Section 28AB could have been invoked as far as the SCN issued to the Petitioner was concerned. Therefore, in the interests of justice recovery of penal interest under Section 28AB as well as the penalty under Section 114A of the Act by the department is not sustainable. Decided in favour of petitioner
-
2016 (3) TMI 988
Seeking provisional release of seized goods with modification in conditions - Machines imported under EPCG scheme - Petitioner firm would be required to fulfill the export obligation in terms of the EPCG scheme authorization granted to it - Held that:- without entering into the merits of the contentions of the rival parties, the interests of justice would be served if the order of provisional release of the seized goods is modified that the requirement of petitioner to furnish a bond for the full value of the goods is required to be sustained, the requirement of petitioner to furnish bank guarantee for full duty amount is required to be modified by directing the petitioner to furnish a bank guarantee to the extent of 30% of the duty amount in line with the decision of the Supreme Court in Commissioner of Customs, ICD, TKD, New Delhi v. Navshakti Industries Pvt. Ltd [2011 (5) TMI 149 - SUPREME COURT] and also requiring to furnish a bank guarantee of ₹ 43.50 lakh. - Petition disposed of
-
2016 (3) TMI 987
Period of limitation - No fraud or suppression or wilful mis-statement - Held that:- bill of entry as per annexure to the show cause notice was filed on 6.12.1994 and the show cause notice was issued on 26.3.1999, which is clearly barred by limitation as no fraud or suppression or wilful concealment has been alleged in the show cause notice.
Availment of Modvat credit - Transferor of advance licence - Import duty cannot be confirmed and demanded from the transferor who is not the importer - Appellant failed to produce documentary evidence to prove that they did not avail modvat credit on inputs - Held that:- the case is covered by the judgment of this Tribunal in the case of Sunbeam Garments Pvt. Ltd. vs. CC, Kandla [2013 (5) TMI 382 - CESTAT, AHMEDABAD] in which the judgment of the Hon'ble Supreme Court in the case of CC vs. Auto Ignition Ltd. [2008 (4) TMI 43 - SUPREME COURT] has been relied on wherein the onus to prove that the assessee has availed of the modvat credit was on the Revenue and the Revenue has failed to discharge that onus and, therefore, the impugned order is liable to be set aside. - Decided in favour of appellant with consequential relief
-
2016 (3) TMI 986
Imposition of penalty under Section 114 (i) & (iii) of Customs Act, 1962 - Violation of Facility Notice No. 41/2009 by the appellant and due to negligence of the appellant serious offence of the smuggling of red-sanders was committed - Held that:- the details of the shipping bills were not reflecting in the online data. In this situation, it is very clear that when the shipping bills unauthorizedly filed were not appearing online, no obligation can be casted on the appellant as the appellant had no knowledge about the filing of the subject shipping bills. The penalty can only be imposed in a case when the appellant knowingly involved in any act which helped the smuggling of red sanders which is not the case here. In this fact of the case, the involvements of the appellant or non-compliance of Facility Notice No. 41/2009 is not established. Therefore, penalty can not be imposed on the appellant. - Decided in favour of appellant
-
2016 (3) TMI 985
Eligibility for benefit of notification no. 56/2008 dated 29/04/2008 and notification no. 21/2002 - EDI system which is operational into the customs was not updated to extend benefit of notification 56/2008 to the product imported - Respondent sought amendment to bills of entry as per the provisions of section 149 and/or 154 of the Customs Act, 1962 which was not responded to - Held that:- eligible benefit of the notification could not be extended to assessee due to an error and non updation of the program in the EDI system, cannot be held against an assessee, only on the ground that they had not challenged the assessment for the bills of entry. This would deny legitimate benefit available to an assessee and more so when the assessee, had sought the amendment of bills entry as per the provisions of Customs Act, 1962. Therefore, the respondent is eligible for the benefit of above notification followed by the decision of Tribunal in the case of Oswal Agloimpex Pvt. Ltd. [2012 (10) TMI 170 - CESTAT, AHMEDABAD]. - Decided against the revenue
............
|
9911796707
