|
Advanced Search Options
Case Laws
Showing 481 to 500 of 1831 Records
-
2017 (5) TMI 1353
Extension of stay for the recovery of demand - Held that:- We extend the stay for a period of 90 days or till the disposal of the appeal by Third Member whichever is earlier with the condition that the assessee shall give undertaking to the effect that assessee shall not transfer, dispose off, alienate or create any kind of third party interest in the fixed and immovable assets of the assessee-company, in order to secure the amount within 30 days from the date of the order.
-
2017 (5) TMI 1352
Transfer pricing adjustment in regard to AMP expenses - Held that:- As decided in the assessee’s own case for assessment year 2011-12 [2017 (5) TMI 1351 - ITAT DELHI] it would be in the fitness of things if the impugned order is set aside and the matter is restored to file of TPO/AO for fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If on the other hand, the international transaction is found to be existing, then the TPO will determine the ALP of such an international transaction in the light of the relevant judgments of the Hon’ble High Court in Sony Ericsson Mobile Communications (India) Pvt. Ltd. Vs. CIT [2015 (3) TMI 580 - DELHI HIGH COURT] after allowing a reasonable opportunity of being heard to the assessee.
As relates to benefit of deduction under Section 80IC the same was claimed only for the unit situated in Rudrapur (Uttrakhand). There is net loss in the units of Manessar (Haryana) & Chennai (Tamilnadu) and there is a net profit in Rudrapur Unit. The TPO has only disallowed this claim as the assessee was not involved in manufacture of any item covered by Schedule XIV, where as the assessee has referred Schedule XIII and submitted that it is not considered by the TPO. After verifying Schedule XIII & XIV it is pertinent to note that the assessee’s location at Rudrapur is coming under the scope of 80IC but the address was not properly verified by the TPO. Therefore, this needs to be verified. We therefore, remit this issue back to the file of the TPO to examine the same as relates to the applicability of the Schedule XIII.
-
2017 (5) TMI 1351
Claim of deduction u/s 80IC - rejection of Books of Account and Non-submission of required documents/information - Held that:- The claim of deduction u/s 80IC is not eligible for deduction as the assessee has not submitted separate profit and loss account and balance sheet as per the provision of Rule 18BBB of the IT Rules. DR submitted that the AO has clearly held at para 4.9 that details were not submitted by the assessee and unit-wise books of account were not produced by the assessee.
Deduction under section 80-IB - Held that:- Interest income on FDRs cannot be regarded as income flowing from business activity of industrial undertaking and, thus, it cannot be computed for deduction under section 80-IB. interest income on FDRs cannot be regarded as income flowing from business activity of industrial undertaking and, thus, it cannot be computed for deduction under section 80-IB.
TPA - AMP adjustment - Held that:- In Sony Ericsson Mobile Communications (India) Pvt. Ltd. Vs. CIT (2015 (3) TMI 580 - DELHI HIGH COURT) in which the AMP expenses as an international transaction has been accepted. In another judgment in Sony Ericson Mobile Communications (India) Pvt. Ltd. (for A.Y. 2010-11 - 2016 (1) TMI 1234 - DELHI HIGH COURT), the question as to whether AMP expenses is an international transaction, has been restored for a fresh determination. We are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to file of TPO/AO for fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If on the other hand, the international transaction is found to be existing, then the TPO will determine the ALP of such an international transaction in the light of the relevant judgments of the Hon’ble High Court, after allowing a reasonable opportunity of being heard to the assessee.
Benefit of deduction under Section 80IC the same was claimed only for the unit situated in Rudrapur (Uttrakhand). There is net loss in the units of Manessar (Haryana) & Chennai (Tamilnadu) and there is a net profit in Rudrapur Unit. The TPO has only disallowed this claim as the assessee was not involved in manufacture of any item covered by Schedule XIV, where as the assessee has referred Schedule XIII and submitted that it is not considered by the TPO. After verifying Schedule XIII & XIV it is pertinent to note that the assessee’s location at Rudrapur is coming under the scope of 80IC but the address was not properly verified by the TPO. Therefore, this needs to be verified. We therefore, remit this issue back to the file of the TPO to examine the same as relates to the applicability of the Schedule XIII. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in such fresh proceedings
Depreciation on capital subsidy - Held that:- The amount of capital subsidy was not received during the subject year as per the Ld. AR’s contention but the same needs to be verified. Therefore, we remit this issue back to the file of the TPO to examine the same.
-
2017 (5) TMI 1350
Penalty u/s.271(1)(c) - legality of notice issued u/s.274 r.w.s 271(1)(c) - Held that:- AO has not struck off either of one reason and has issued notice taking both the basis of imposing penalty by alleging that the assessee has concealed the particulars of income as well as furnishing inaccurate of income. Further in the penalty order framed u/s.271(1)(c) of Act Ld.AO has again quoted both the reasons i,e concealment of particulars of income and furnishing of inaccurate particulars of income for penalizing the assessee u/s.271(1)(c) of the Act. It can be inferred that Ld.AO was unable to make complete application of mind to assess the basis of imposing the penalty. Further Revenue, has been unable to prove that the impugned notice is not impaired or prejudice to the right of assessee for providing reasonable opportunity of being heard in order to defend its case for the specific reason for which penalty is imposed.
Thus notice issued u/s.274 r.w.s 271(1)(c) of the Act, issued in the case of assessee was illegal and bad in laws as it is not specifying particular charge on which the penalty has been imposed i.e for concealment of particulars of income or furnishing inaccurate particulars on income and is therefore liable to be quashed. - Decided in favour of assessee.
-
2017 (5) TMI 1349
Refund claim - scope of input services - services used in the export of goods - time limitation - whether the refund claim of ₹ 6,04,051/- is barred by limitation? - N/N. 5/2006-CE(NT) - Held that: - the Notification specifically prescribed that the period of limitation as prescribed u/s 11B of CEA, 1944 would be applicable to refunds filed under Rule 5 of CCR, 2004 - it is not clear when the remittance for export of services had been received by the appellant. Therefore, for this limited purpose of calculation of period of limitation and consequently, the amount of refund, the matter needs to be remanded to the Adjudicating Authority - matter on remand.
Whether the claim of ₹ 18,58,545/- is eligible as Input Services being used in the export of finished goods? - Held that: - these services viz., Rent a Cab Services, Catering Service (Canteen), Mobile/Telephone Service, Courier Service, Advertising and Marketing Service, Professional Service, Banking Service- HP Finance Service are held to be Input Service - reliance placed in the case of M/s HCL Technologies Ltd. Versus Commissioner of Customs And Central Excise And Service Tax, Noida [2015 (9) TMI 1037 - CESTAT NEW DELHI], where it was held that - the credit availed on the service tax paid in relation to these Input Services are admissible.
Appeal allowed - part matter decided in favor of assessee and part matter on remand.
-
2017 (5) TMI 1348
Refund of CENVAT credit - real estate agent services - technical testing and analysis services - denial on account of nexus - Held that: - with regard to the real estate agent services as well as technical testing and analysis services, both the services fall in the definition of input service and both the services are related with the business activities of the company - refund allowed.
Advertisement service - cargo handling service - Held that: - there is no finding given by the learned Commissioner (A), therefore case remanded to the learned Commissioner (A) with a direction to pass reasoned order with regard to these two input services - matter on remand.
Appeal allowed by way of remand.
-
2017 (5) TMI 1347
Whether exemption provided for job work activities under N/n. 8/2005 dated 01.03.2005 should be considered as exempted service in terms of Rule 2(e) ibid for applicability of the embargo created in Rule 6 ibid?
Held that: - The services in this case were exempted from payment of service tax under N/N. 8/2005-ST dated 01.03.2005 on the condition that the goods produced by the job worker of using raw material or some semi finished goods should be returned back to the client for use in or in relation to manufacture of any other goods, on which appropriate excise duty is payable. On fulfillment of such conditions, the appellant was extended the benefit of non-payment of service tax. Such exemption though conditional, is availed by the appellant - the mischief of Rule 6(3) of the CCR, 2004 will get attracted - appeal dismissed - decided against appellant.
-
2017 (5) TMI 1346
Reverse Charge Mechanism - services received from abroad - time limitation - Held that: - the SCN dated 05.01.2011 was issued by invoking the extended period in respect of the services received by the respondent from service provider situated abroad and the very same services also disputed in the second SCN and it was informed that the said SCN has not reached its logical conclusion.
Scope of second SCN - Held that: - once an audit report was issued and base on that report, SCN dt. 05.01.2011 issued invoking extended period, second SCN dated 11.04.2012 could not have been issued demanding service tax by invoking extended period on the said audit report.
Appeal dismissed - decided against Revenue.
-
2017 (5) TMI 1345
Refund claim - N/N. 41/2007-ST dated 06/10/2007 - denial on the ground that goods have been exported, claiming drawback - Held that: - the specified services for which refund is allowable under N/N. 41/2007-ST dated 06/10/2007 as substituted and amended, read with N/N. 33/2008-ST dated 07/12/2008 read with N/N. 80/2006-Cus. (NT) dated 13/07/2006, the refund of Service tax is available in spite of claiming drawback - appellant will be entitled to refund under N/N. 41/2007-ST dated 06/10/2007 - appeal allowed - decided in favor of assessee.
-
2017 (5) TMI 1344
Rectification of mistake - Held that: - the contentions in the said Para 5 of ROM Application are totally wrong when compared with the record as reflected in above stated Para 13 of appeal memorandum, so far as they related to allegations made against the counsel & facts on record. I, therefore, hold that there was no apparent mistake of facts on the face of record - application for ROM dismissed.
-
2017 (5) TMI 1343
Refund claim - N/N. 41/2007-ST dated 06.10.2007 - Terminal Handling Charges - denial on the ground that this is not a port service - Held that: - the issue has already been settled by the Hon’ble Gujarat High Court in the case of AIA Engineering Pvt. Ltd. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] wherein it has been held that Terminal Handling Charges are covered under port service - refund allowed.
Goods Transport Agency Service - denial on the ground that the transportation charges has been paid to and fro to the port of export - Held that: - it is merely allegation that the transportation charges has been paid by the appellant to and fro from their factory but no evidence has been produced by the Revenue on record and the appellant has explained that the transportation charges paid by them for transportation of goods from their factory to the export of goods - refund allowed.
Time limitation - scope of SCN - Held that: - issue of time barred and the appellant has claimed drawback, were not raised in the SCN, therefore, the observations made by the lower authority is beyond the scope of SCN, which are not maintainable.
Appeal allowed - decided in favor of appellant.
-
2017 (5) TMI 1342
Valuation - scrap - job-work - scrap generated at the job workers end should have been returned to appellant, but the same was retained by job workers who sell the same directly, for which value at ₹ 4/- per kg is predetermined and adjusted for calculating and paying machined rates to the job workers - Held that: - the adoption of assessable value of ₹ 4/- per kg by the appellant for calculating their duty liability on the scrap generated at the job workers end cannot be then disputed by the department. There can be no further demand of duty on the generated physically available scrap other than that discharged by appellant on value of ₹ 4/- per kg. In consequence, there will also be no penalty in respect of the duty liability discharged by this manner.
Coming to the duty liability on burning/transportation loss, irrecovable scrap, we find that the learned counsel has conceded the same. However, he prays for cum-duty benefit - Held that: - while maintaining the notional value of the quantum involved on such process loss etc. at ₹ 4/- per kg., the appellants are extended cum-duty benefit for purposes of calculating their duty liability thereon - the matter is remanded back to the adjudicating authority for revised calculation of duty liability.
Penalty - Held that: - it is not in dispute that the appellants have paid the entire duty liability at the rate of ₹ 4/- per kg even before issue of SCN, hence, in our considered opinion, the beneficiary provisions of Section 11AC can be applied and the appellants will have to pay penalty equal to only 25% of the duty liability.
Appeal allowed by way of remand.
-
2017 (5) TMI 1341
Entitlement to interest on Pre-deposit - finalisation of provisional assessment - whether the amount of Rs. One Crore paid by the respondent, on the directions of ld. Commissioner (Appeals) is to be treated as pre-deposit or an amount of duty, after finalisation of the provisional assessment? - Held that: - Section 37 of the CEA, 1944, Clause (2) (ibb) provides for charging or payment of interest on the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments - Admittedly, after assessment was finalised by this Tribunal, the respondent is entitled to claim interest on the excess duty paid by them before finalisation of assessment.
As the amount paid by the respondent was during the pendency of finalisation of their provisional assessment and therefore, the same shall be treated as duty and on finalisation of provisional assessment, the respondent is entitled for interest of intervening period of excise duty paid by them - appeal dismissed - decided against Revenue.
-
2017 (5) TMI 1340
Refund claim - deemed exports - assessee claims that the supplies from DTA to SEZ unit is a deemed export and as good as physical exports - Held that: - the Commissioner (A) has allowed the appeal of the assessee by relying on the judgment of the Hon’ble Supreme Court in the case of Virlon Textile Ltd. vs. CCE [2007 (4) TMI 6 - SUPREME COURT OF INDIA] wherein it has been held that refund could not be denied on the ground that it was deemed export - appeal dismissed - decided against Revenue.
-
2017 (5) TMI 1339
CENVAT credit - material development plant - material expansion plant - Department took the view that the said plant was embedded to the earth and hence immovable property - Held that: - The Section 37B order dated 15-01-2002 issued by the Board is very exhaustive going into 9 paras and clarifies various parameters and situations when and where the plant / machinery etc. would be considered immovable or otherwise - the present dispute will requires to be remanded back to the original adjudicating authority for denovo consideration to apply the tests laid down in the Board's Section 37B.
Penalty - Held that: - since the matter per se was under confusion, a fact recognized even by the Board in para 4 of the aforesaid section 37B order, the adjudicating authority should also adjudicate afresh the matter of imposability of penalty.
Appeal allowed by way of remand.
-
2017 (5) TMI 1338
100% EOU - CENVAT credit - whether the respondent was correct in utilising the CENVAT credit balance available with him for discharge of applicable duties on the inputs cleared from their premises or otherwise? - Held that: - respondents are 100% EOU; procured inputs indigenously as well as imported the same by claiming the benefit of N/N. 52/2003-Cus and N/N. 22/2003-CE which enables them to import the goods without payment of duty; they have sought the permissions of the authorities to clear the inputs which they are unable to consume in 100% EOU; authorities granted permission to respondents for clearance of such inputs to DTA on discharge of applicable duties; the applicable duties have been discharged by the respondent by debit in the CENVAT account considering them as Central Excise duty.
Appeal rejected - decided against Revenue.
-
2017 (5) TMI 1337
SSI exemption - clubbing of clearances - whether the appellants have played foul of the provisions of 2(vi) of SSI exemption N/N. 8/2002-CE dated 1.3.2002, which was in force during the relevant period? - Held that: - there is no doubt that the Director of Executive Forms and the partner of Honeywell Form connived to fraudulently keep their overall clearance value of the firm within the rupees one crore exemption limit for SSI units. They have embellished this subterfuge by seeking and obtaining registration of the very same premises giving different door number to it. Thus they tried to project that the two firms were operating at different premises and therefore, the benefit of SSI exemption under N/N. 8/2002 can be claimed by each of them separately - the original authority has been considerate generous to the appellants by extending cum-duty benefit and the lower appellate authority has further reduced the penalties on the director/partner considerably - appeal dismissed - decided against appellant.
-
2017 (5) TMI 1336
Levy of duty and penalty - clandestine manufacture and removal - issuance of parallel invoices - Held that: - no search have been carried out in the premises of M/s SCL. All the documents, pen drive, computer hard disc, etc. on the basis of which demand had been raised, were recovered from the factory & office of M/s PPPL. The proposed demand had been mainly confirmed on the ground that the Director of appellant-M/s SCL have admitted the fact of clandestine removal, to M/s PPPL.
The case of the Revenue is based solely on the basis of third-party records which are mainly the computer printouts. No evidence have been brought on record by Revenue in terms of Section 36B (2) of the Central Excise Act, which requires that for admissibility of data obtained from microfilms, computer printouts, etc., satisfaction have to be recorded.
Revenue have failed to establish certain fundamental criteria for the allegation of clandestine removal, as there is no tangible evidence of clandestine manufacture by these appellants, and the whole demand is based on mere assumptions and presumptions. There is no investigation with respect to usage of unaccounted or excess raw materials, discovery of any finished goods outside the factory, use of electricity far in excess than what is necessary for manufacture of goods, otherwise manufactured and validly cleared on payment of duty, proof of actual transportation of goods etc. Inferences cannot be drawn about such clearances merely on the basis of notebooks, diaries privately maintained or some computer data recovered from pen drives not maintained in the ordinary course of business. Further, the impugned orders are vitiated for not giving opportunity of cross-examination, including examination of the witnesses of the Revenue. The demand being mainly based on some private records, etc., maintained by third party - M/s Panchwati Prayogshala for their internal control cannot be the sole basis for raising demand against M/s SCL - the demand is not sustainable against M/s SCL - appeal allowed.
So far M/s Panchwati Prayogshala Private Limited & its Director Mr. Pankaj Goel are concerned, the matter been settled before the Settlement Commission, as noticed hereinabove and accordingly I set aside the penalties.
Appeal allowed - decided in favor of appellant.
-
2017 (5) TMI 1335
Valuation - Pan masala - abatement - whether under the Pan Masala Packaging Machines (capacity determination and collection of duty) Rules, 2008, the abatement is admissible suo motu or the duty has to be paid first and the abatement is to be allowed, thereafter?
Held that: - the issue herein is squarely covered by the precedent ruling of this Tribunal in the case of M/s Trimurti Fragrances Pvt. Ltd. [2015 (8) TMI 34 - CESTAT NEW DELHI], where it was held that payment of duty first for the whole month and then claiming of rebate is not a precondition and duty is payable for the number of days for which a factory was working. Thus, demand of duty for the whole month was held unsustainable.
Appeal dismissed - decided in favor of respondent-assessee.
-
2017 (5) TMI 1334
CENVAT credit - common Input Services used both for manufacturing and trading activities - whether proportionate Cenvat Credit on the Input Services that had been used for trading activities is required to be reversed? - Held that: - There is no dispute of the fact that the appellant had reversed proportionate credit supported by Chartered Accountant's certificate dt 03.5.2017 - before the authorities below they have already claimed about such reversal of credit being not considered, at this stage remanding the case to the Adjudicating Authority for verification of the evidences would not serve the purpose.
Considering the Chartered Accountant's certificate and the fact that earlier, the appellant claimed proportionate reversal of credit on Common Input Service used in trading services, in my opinion, imposition of penalty is not warranted.
Appeal disposed off - decided partly in favor of assessee.
............
|
9911796707
