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Case Laws
Showing 481 to 500 of 686 Records
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2009 (6) TMI 373
Base Station Controller (BSC) - Eligibility for concessional rate of duty under Notification No. 17/2001-Cus - Original authority found that the impugned goods were not BSC and denied the assessment in terms of Notification No. l7/01-Cus. In the impugned order, the Commissioner (Appeals) concurred with the finding of the original authority that the impugned goods did not constitute a complete BSC to qualify for the benefit of assessment at the concessional rate under Notification No. 17/2001-Cus - We find that out of the eight functional units necessary for the BSC as per the catalogue submitted, one of the functional units, namely, cable 6 GSWB, used for switching and connecting signalling circuit was not imported. - We also find that the importer never disputed that the imported goods were for upgrading an existing BSC in possession of the importer. We observe that the components of BSC under import are required for mounting on an existing BSC to upgrade its capacity. These goods do not form a complete BSC eligible for concessional assessment in terms of Notification No. 17/2003-Cus. - we sustain the impugned order and dismiss the appeal.
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2009 (6) TMI 370
Valuation – transfer of goods from foreign headquarters - We find that the appellants had declared in the invoice enclosed with the Bill of Entry that the goods under import were the property of SASL-owner, the import did not involve remittance of foreign exchange, the price declared was for customs purpose and that the goods would be re-exported. We find that it is sufficient disclosure of the fact that the import did not involve sale of the impugned goods and that the transaction was not of commercial nature between unrelated buyers. – No misdeclaration especially as department did not enquire about genuineness of declared price – Further, The appellants had declared the assessable value for the import of the subject consignment adopting net book value which was zero in respect of most items - It is nobody’s case that the appellants had worked out the net book value at the time of filing declaration as per the records manipulated for the purpose and that the said records had not been maintained in the regular course of their day to day business. The appellants declared the price for the purpose of assessment in terms of its understanding of Section 14 of the Act. It cannot be held that the appellants had misdeclared the value for assessment intentionally to evade payment of duty - The importer cannot be held to have mis-declared the assessable value for the reason that it had not declared a value conforming to the requirement as understood by the authorities. Moreover, the price is not acceptable to the authorities only for the reason that the same was lower compared to the prices worked out in accordance with the Ministry’s letter F. No. 493/124/86-Cus., dated 19-12-1987. In the circumstances we hold that there was no misdeclaration or suppression of facts with intent to evade payment of duty on the part of the importer. The demand invoking longer period is time-barred. In the result, we vacate the impugned demand and the penalty imposed on SASL and allow this appeal.
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2009 (6) TMI 369
Foreign trade policy - It is contended that under Target Plus Scheme, the petitioner as well as other similar entities, who have achieved a minimum export turnover in free foreign exchange of Rs. 10 crore in the previous licensing year were eligible for consideration for credit entitlement under the Target Plus Scheme. This limit of Rs. 10 crore was subsequently reduced to Rs. 5 crore vide Notification No. 20 (RE 2006/2004-2009, dated 13-7-2006). The entitlement under this scheme was contingent on the percentage of incremental growth in Free on Board (FOB) value of previous exports in the current licensing year over the previous licensing year - The petitioner having proceeded to act in terms of the policy, which has been brought into force as narrated herein above, the notification at Annexure – K1 seeking to take away the benefit conferred by virtue of the credit duty being limited in terms of Annexure – K1 and with retrospective effect, would be opposed to law as is well settled by several decisions of the Supreme Court - Accordingly, the petition is allowed. Annexure – K1 insofar as it restricts the credit duty to which the petitioner was entitled in terms of Annexure – C is quashed.
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2009 (6) TMI 368
Implementation of order of tribunal - Appellant has come to this forum for proper direction to the Authority below to implement of the order of tribunal wherein relief has been granted to assessee-appellant - Although the order has been passed in the year 2008 and 5 (five) months have been elapsed. Orders of the Tribunal have not been implemented by the authorities below on some pretext or other. – Bank guarantee given by assessee kept alive for five months after passing of order – Revenue claiing that they have filed appeal against the order before High Court and directions being given there to keep alive bank guarantee, but copy of same not served on assessee - Submission of the learned Counsel that their interest is prejudiced with the survival of bank guarantee till today is a matter of serious concern when Tribunal has already decided the matter in favour of the litigant. Copy of appeal memo before the Hon’ble High Court of Delhi not being served on the present appellant, the appellant is also in dark – departmental representative directed to file his affidavit on particulars of department’s appeal to HC along with directions for stay and bank guarantee therein
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2009 (6) TMI 365
Foreign origin goods – valuation - As rightly pointed out by the learned advocate, what has been indicated in the Panchanama, and admitted by the appellant in his statement, is that the market value of the goods is Rs. 95/- per kg. Therefore, it would not be fair to charge duty on the market value of the goods prevailing in India once it is established that the goods are of foreign origin. - We also find considerable force in the argument advanced by the learned counsel that there is no need to find out contemporaneous import price in this case. That is required only in the case of regular import and not in the case of the goods smuggled. - request of learned counsel that the market value may be treated as cum-duty price is the best option under the circumstances rather than striving to find out value based on contemporaneous import. In view of the above, we set aside the impugned order and remand the matter to the original adjudicating authority who shall treat Rs. 95/- per kg as cum-duty price and arrive at duty liability afresh. We make it clear that only duty element will be deducted considering Rs. 95/- per kg as cum-duty price. Further, in view of the fact that this would reduce the quantum of duty payable by the appellant, the redemption fine as well as penalty will have to be reconsidered.
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2009 (6) TMI 363
Levy of anti-dumping duty on Acrylic tow - Anti-dumping duty is leviable on import of acrylic fibre falling under sub-heading No. 5501.30 or 5503.30, in terms of Notification No. 133/2001-Customs, dated 31-12-2001. The original authority held that the acrylic tow imported by the respondent has to be considered as acrylic fibre and therefore, the same attracts anti-dumping duty, in terms of Notification No. 133/2001-Cus., - Held that the levy cannot be based on implication. – . The levy is clearly on acrylic fibre. - Customs Tariff 5501 at 4 digit level refers to acrylic tow and 5503 refers to acrylic fibre. Therefore, there is conscious distinction between the acrylic tow and acrylic fibre. Notwithstanding the fact that sub-headings 5501.30 and 5503.30 have been mentioned in the notification, the levy is only on import of acrylic fibre. It cannot be extended to acrylic tow by any implications. - Contention of the appellant is quite correct and convincing in as much as the ‘acrylic fibre and acrylic two are two different goods and the anti-dumping duty is chargeable only on acrylic fibre and not on acrylic tow’.
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2009 (6) TMI 361
Entitlement to utilize lapsed credit after withdrawal of Compounded Levy Scheme - According to Appellants they are entitled to this credit after the Compounded Levy Scheme effective from 1-8-1997 was abolished subsequently. They also challenges the penalty amounting to Rs. 9.00 lakhs imposed on them - we find that in view of the retrospective amendment made to the Central Excise Act, 1944 by the Finance Act, 1999, the Central Government now has power to make rules for lapsing of the credit. Since such retrospective amendment has also been validated, the impugned Rule 57F(17)(c) allowing for lapsing of the credit cannot be said to have been made without authority - since the basis of the earlier decisions of the Hon’ble Supreme Court cited by the Appellants has been fundamentally altered by the subsequent retrospective amendment of the law, the Appellants cannot be given benefit of those decisions in the present case. – Impugned credit payable by appellant – However, we waive the penalty imposed on them. - Except for setting aside the penalty, the Appeal is otherwise dismissed
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2009 (6) TMI 359
Demands under Rule 6 of the CENVAT Credit Rules, 2001 are confirmed on the ground that the appellants are taking credit in respect of common inputs used in the manufacture of dutiable goods as well as exempted goods - we find that the appellants were not taking credit in respect of the inputs used in the manufacture of exempted goods. As per records, the credit was availed only in respect of the inputs which are used in the manufacture of goods on which duty is being paid. The appellants produced copies of all the invoices on which credit has not been availed and the inputs received under these invoices are used in the manufacture of the exempted goods. The records are maintained, which shows separate inventories of the inputs which are used in the manufacture of exempted goods and no credit is availed in respect of inputs used in the manufacture of exempted goods - In view of the above discussions, the impugned Orders demanding 8% of price of exempted goods are set aside and the appeals are allowed.
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2009 (6) TMI 357
The issue involved is valuation of Styrene monomer (Petroleum product), imported by the respondents from Malaysia. - The Revenue proceeded to enhance the value on the basis of some other contemporaneous importers and accordingly proceedings were initiated and the value was enhanced - Commissioner (Appeals) took into consideration the fact that during the relevant period, prices in the PLATT Bulletin were more or less equivalent to the prices during the time when the contract was entered into by the respondents, and hence respondents are entitled to benefit - The Revenue has not been able to rebut the findings arrived at by the Commissioner (Appeals) and evidences taken into consideration by him. We find no infirmity in the order of the Commissioner (Appeals), inasmuch as the price declared by the respondents was in consonance with the prices quoted in the PLATTS. We find no merits in the Revenue’s appeals and accordingly, reject the same.
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2009 (6) TMI 356
Enhancement of value - Commissioner (Appeals) has extended benefit to the appellants by taking note of the fact that they have entered into contract with the supplier of the goods and such contract was based on international prices of the commodity. There being no evidence of rejection of the transaction value, ratio of the law declared by Hon’ble Supreme Court in case of Eicher Tractors v. CCE, Pune would apply - In such circumstances, the charge of the department that the price was not competitive or that there was some abnormal discount given only to the appellant is not sustainable. - We do not find any justification to interfere in the above findings of Commissioner (Appeals), which is based upon the appreciation of the evidences as also the precedent decisions of Tribunal. - Appeal filed by the Revenue is, accordingly, rejected.
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2009 (6) TMI 355
Whether the claim filed by the appellant for refund of CVD paid on the goods imported by them is hit by the bar of unjust enrichment. - As rightly observed by the original authority, any distress sale per se would not mean that incidence of duty paid on such goods by the seller was not passed on to the buyer - Chartered Accountant certificate that duty burden has not been passed on - Such a certificate should be based on accounts and accounting practices/principles. None of this is discernible from this document. Therefore, the lower authorities are fully justified in having not admitted the Chartered Accountant’s certificate as evidence against bar of unjust enrichment. The appellant has no case that a reasonable opportunity of adducing evidence was not given to them by the original authority – appeal dismissed
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2009 (6) TMI 354
Valuation - Appellants, states that the reduction in the value of the exported consignment by the Customs authorities and consequently reduction in the drawback amount is not justified. He states that the samples from the consignment were not taken - impugned adjudication order, gives the basis of determination of the value, which has taken average price of two comparable brands allowed 10% rate discount and added 20% towards profit margin, interest, transportation etc. to arrive at FOB value for drawback purposes - As such, the valuation done by the authorities below as a result of investigation by the Special Investigation Branch, cannot be said to be arbitrary. - Moreover, the Customs authorities have used the price of two comparable brands to make such determination after allowing trade discount, profit margin etc. Hence, we are of the view that the valuation done by the lower authorities is in order and the same needs no interference and therefore the appeal is rejected.
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2009 (6) TMI 353
Whether the impugned goods, namely, packaged drinking water, bears a brand name meriting classification under sub-heading 2201.19, or it is unbranded meriting classification under sub-heading 2201.11 under which the goods are chargeable at nil rate of duty as against 16% under the former classification - The lower appellate authority has decided the matter in favour of the respondents holding that the label in this case indicates abbreviated form of the name of respondents – However, the department has not furnished a copy of the label along with the appeal. The matter was adjourned last time giving a direction to the ld. SDR to produce a copy of the label. The ld. SDR has today brought the original file, but nowhere a copy of the label is available. As such, there is no material available with the revenue to substantiate the appeal and hence, we dismiss the appeal
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2009 (6) TMI 333
Exemption u/s 10(22) denied - misutilisation of funds - remuneration paid to the wife and children of the managing trustee of the trust and the electricity bills towards his residence - Tribunal held that exemption u/s 10(22) cannot be denied on the basis of the provisions of section 13(2B)(sic) of the Act ? - misuse of funds by managing trustee of the trust – income of trust were utilized personally by Managing Trustee -
HELD THAT:- Payments have been made to the chairman and managing trustee and the legal advisor of the trust and the family members to purchase dental equipments and towards electricity charges of chairman's house. The undisputed fact of appointment of family members to the important posts of the trust and payment of remuneration to them is also clearly extracted. The payment made is out of unexplained income of the assessee. The agreement of sale and the sale deed and payments made are in the name of Sri Sadashivan, chairman-cum-managing trustee of the trust and not in the name of the trust. Therefore, the said findings of the AO are in respect of misappropriation and misutilisation of the funds of the trust
As finding of the AO based on material evidence is set aside by the Tribunal without adverting to each one of the items independently by applying its mind to the undisputed facts and the material evidence available on the file of the Assessing Officer and the documents, which are impounded from the office of the trustee and without assigning valid and proper reasons.
The documentary evidence would clearly go to show that the receipts which are in the name of the trust and donation collected amounts to profit-making motive and it cannot be the object or the purpose of running a charitable educational institution for which the statutory benefit under section 10(22) of the Act is claimed. Therefore, the substantial questions of law 13 and 14 would certainly arise in this appeal and we answer the same in favour of the Revenue.
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2009 (6) TMI 332
Appeal to tribunal - “Whether the Income-tax Appellate Tribunal was justified in confirming the findings recorded by Commissioner of Income-tax (Appeals) without resorting to recording its own findings on each and every issue raised, projected and argued before the said Tribunal?” - Tribunal should have dealt with issues “both on facts and law with reference to submissions urged and then returned their own reasoning, which may be of concurrence or that of reversal. Quoting the finding of the Commissioner of Income-tax (Appeals) and simply upholding the same without giving its own reasoning, is not proper. - In our view, it does not amount to “deciding the appeal” but at best it may amounts to “its disposal”. - Tribunal will decide the appeal after narrating the full relevant facts necessary for the disposal of appeal, legal issues governing the questions and then assign their reasoning with reference to any case law on the subject having its application to the questions raised – Matter remanded
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2009 (6) TMI 331
Interest on capital borrowed for investment in shares - Deduction is claimed by him of the interest amount paid on the borrowed loans. The amounts borrowed by the appellant were invested in shares and dividend is earned - that dividend income is exempted under section 10(33) of the Act from the tax liability and the same cannot be computed for income under the head “Other sources”. Exempted income is not allowable for deduction in view of section 14A of the Act. In view of these two provisions, the claim of the assessee is wholly untenable
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2009 (6) TMI 328
Whether the services provided by the applicant for the business organization for conducting conferences during the period 1-1-02 to 13-7-04 is liable to be charged under service tax as convention services despite the fact that the respondents has taken the registration under Mandap Keeper and filed returns annually. - Commissioner (Appeals) has given the following finding that assessee took registration and was assessed under Mandap Keeper Services for 10 years from 1997 to 2007 and re-classification for past period made without any suppression by assessee – what prevented the Revenue from asking for further details as they were aware that the appellant was providing Mandap Keeper services when receipt of payments states as not decaled in ST-3 returns – suppression not proved - We do not find anything wrong in the Commissioner’s Order as regards the limitation aspect and we hold that the impugned order is correct and legal. - respondents had been availing exemption under Notification No. 12/01, dated 20-12-2001 – departmental clarification issued in 2001 that person registered under Mandap Keeper service not required to get registered under Convention service - Board Circular No. 51/13/02, issued on 7-1-2003 holding exemption not admissible in such cases, is applicable with prospective effect and can be relied upon for service tax levy on respondent - Though the circular dated January, 2003 can be brought into effect for the purpose of levy of service tax on the convention services rendered by the respondents, but on the point of limitation we concur with the Commissioner (Appeals) findings, that there was no suppression.
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2009 (6) TMI 318
“Whether the Appellate Tribunal was right in holding that the appellant was not an aggrieved person and consequently had no locus standi to file the appeal against the order impugned before it?” - case as noted, the appellant had purchased goods on which earlier it was assumed that no excise duty was payable. Then a Bank guarantee was obtained from the appellant that in the event the excise duty was demanded then he will reimburse O.N.G.C. O.N.G.C. took up the matter in appeal up to the Commissioner (Appeals) and thereafter did not take any steps. It is the Petitioner who has to pay the excise duty. - In our opinion, such person can be said to be person aggrieved as prejudice has been occasioned to him by O.N.G.C. in not preferring an appeal and the appellant having to pay the excise duty which in his opinion is not payable. – Tribunal’s order that only manufacturer is entitled to prefer an appeal under Central Excise Law is not sustainable - Held that the person aggrieved who is allowed to prefer an appeal would only be entitled to prefer appeal to the extent of the prejudice suffered by inaction of the original assessee through whom he claims the relief. - . The question of law as framed would have to be answered in the negative against the Revenue and in favour of the assessee.
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2009 (6) TMI 317
Appellant submits that the goods imported - “gold mountings for making studded jewellery”, are fully covered by Circular No. 13/2006-Cus., dated 29-3-06 clarifying that “findings and mountings of gold/silver” are covered by S. Nos. 2 & 3 of the exemption Notification No. 62/04-Cus., dated 12-5-04. He mentioned that though the Board, earlier also vide Circular No. 40/2004-Cus., dated 4-6-04 had clarified that the words “gold in any form” or “silver in any form” in Notification No. 62/04-Cus. will cover all items of gold and silver in Chapter 71, except gold/silver jewellery or foreign currency of coins of gold/silver, and that it would cover findings and mountings of gold/silver, Circular No. 528/18/04-CUS-TU, dated 2-8-05 had been issued, as clarified in subsequent Circular dated 29-3-06, only to alert the field formations to prevent misuse of Notification No. 62/04-Cus. by claiming concessional import duty on import of complete gold/silver jewellery in the guise of mountings and findings and that to remove confusion and difficulties, the Board in this Circular, has clarified that the findings and mountings of gold/silver are covered by the exemption Notification No. 62/04-Cus – Board’s letter dated 2-8-05 rightly clarified that provisions of an exemption notification cannot expand the scope of notification so as to cover gold jewellery - We fully agree with the view expressed in the Board’s circular dated 2-8-05 that a circular issued by the Board for clarifying the provisions of an exemption notification, cannot expand the scope of the notification and when the Notification No. 62/04-Cus., dated 12-5-04 specifically excludes ‘jewellery of gold’, a circular cannot extend the scope of the exemption notification as to cover the gold jewellery. - Circulars of the Board are binding only when the same are in accordance with the law. Therefore, the items of gold which have acquired the character of jewellery would not be covered by the exemption - only the mountings which do not have the character of jewellery would be eligible for exemption. But this aspect has to be decided by the lower Appellate Authority. – Matter remanded
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2009 (6) TMI 316
Delay in refund - (a) What should be the rate of interest the respondent is entitled to under Section 27A of the Customs Act? - (b) Is the respondent entitled to claim interest on the amount of interest payable under Section 27A ibid? - according to the learned counsel, interest is liable to be paid to a refund-claimant at the rate prescribed by the Central Government as on the date immediately succeeding the period of three months from the date of refund application. It is argued that this time is fixed under Section 27A and, therefore, interest has to be paid at the same rate for the entire period of delay. - This argument would render the remaining successive notifications redundant and, therefore, the argument cannot be accepted. The expression “time being” denotes each and every point of time of delay If the delay starts on 12-5-2000, the rate of interest payable will be 15%. If this delay continues beyond 10-5-2001, interest becomes payable at the rate of 9% for the period from 11-5-2001. Likewise, where the delay continues beyond 12-5-2001, interest becomes payable at the rate of 8% from 13-5-2002. - The second question relates to the assessee’s claim for interest on interest - respondent submits that interest on interest requires to be paid by the Revenue at the same rate at which the simple interest is payable under Section 27A of the Customs Act, on the principle laid down by the Apex Court in Sandvik Asia Ltd. v. CIT, Pune - - I find that the lower appellate authority had no occasion to consider this kind of an argument. – Commissioner (A) further remanded matter exceeding his jurisdiction - I allow this appeal by way of remand after setting aside his order
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