Try our new portal www.taxtmi.com for a better experience!

Home

Case Laws

Home Case Index All Cases Income Tax Section Wise 2011 2011 (6) This

Law
Court
Citation	- -
Landmark
Order by

Advanced Search Options

Case Laws

Showing 481 to 500 of 851 Records

2011 (6) TMI 562

Confiscation and imposition of penalty - appellants is a SEZ unit located in KASEZ, Gandhidham. They have been issue with a letter of permission by the Development Commissioner, KASEZ, for manufacture and reconditioning of electronic items like Computer Monitors/Printers, etc. Reconditioning of Computer Monitors was being carried out by the appellants in accordance with the said letter of permission – Held that:- DGFT Policy Circular No. 29, classifies reconditioned computer monitors as falling under Heading 8471 60. entry allows free import of the goods and there is no restrictions placed thereunder for import of such goods. no justification for confiscation of the seized goods or truck and for imposition of penalties either of the appellants. confiscation of the goods set aside as that of the truck and set aside the penalties imposed on both the appellants. both the appeals are allowed
2011 (6) TMI 561

Whether Tribunal has committed substantial error of law in holding that recommending committee, on whose recommendation, the appeal has been filed by the revenue, is not properly notified in the Official Gazette and therefore the appeal of the revenue is not maintainable – Held that:- eligibility of the manufacturer to avail Cenvat Credit on service tax paid on goods transport service for clearance of goods beyond the place of removal. This question has been answered by this Court in Tax Appeal No. 419 of 2010 and connected appeals decided on 6-4-2011 [2011 (6) TMI 561 - GUJARAT HIGH COURT] and the issue stands concluded against the Revenue. In that view of the matter, it is not necessary to entertain this appeal though the Tribunal dismissed the appeal on some other grounds. Tax Appeal dismissed.
2011 (6) TMI 560

Waiver of pre-deposit - demand is confirmed in respect of Hydraulic Oil and Hadilin falling under Chapter 34 of the Central Excise Tariff. The Applicant availed credit in respect of the duty paid on these items as capital goods – Held that:- Hydraulic Oil and Hadilin which is a releasing agent used in the Die cannot be considered as part or accessory of the capital goods. Applicant is directed to deposit
2011 (6) TMI 559

Whether the appellant was eligible for refund of the amount paid on HSD oil - CESTAT noted that, under Explanation 1 to Rule 2(k) of the Cenvat Credit Rules, 2004 (the Rules), HSD oil was not to be treated as an input for any purpose whatsoever. Since the period in question was from 1-11-2004 to 21-10-2005 the CESTAT held that the appellant was neither entitled to credit nor for refund - According to the learned Counsel EOUs were entitled to claim refund on the excise duty of HSD oil purchased by them in terms of Circular dated 23-9-2004 – Held that:- contention now urged was not even raised before the CESTAT. Under Section 35G(6) of the Act it is only on a question being raised before the CESTAT and, thereafter, if the CESTAT does not determine the said issue or wrongly determines the said issue by reason of a decision of such question of law as referred to under Section 35G(1) of the Act, would an appeal lie to the High Court. Ordinarily, the power under Section 35G of the Act ought not to be exercised where such a question has not even been raised before the CESTAT. no reason, therefore, to interfere with the order of the CESTAT. Central Excise Appeal is, therefore, dismissed
2011 (6) TMI 558

Stay application - waiver of pre-deposit – classification - venetian blinds made out of imported polyester fibre and coated with scrotch guard and then fitted along with nylon cords – Held that:- under the Customs Tariff, the goods covered were imported textile made-ups under heading No. 6303 and therefore we find prima facie merit in assessee’s contention of classification under CETA sub-heading No. 6303 92 00. prayer for waiver of pre-deposit Stay application is hereby allowed.
2011 (6) TMI 557

Denial of export benefits - Petitioner exported goods purchased from a firm by the name of High Collection Texpin. - The supplier was found to be fictitious and non-existent - proprietor of the Petitioner admitted that he had purchased the goods through a broker and that he had never met the owner or representative of the supplier. There is a finding of fact that no excise duty had been paid on the exported goods - Held that:- Commissioner (Appeals) was justified in coming to the conclusion that the Petitioner was unable to establish the actual payment of the duty on the exported goods. Petitioner has despite the finding against him, been given the benefit of a waiver of the penalty imposed. - Petition is dismissed.
2011 (6) TMI 556

Confiscation and redemption fine – process the fabrics with or without the aid of power or steam - Held that:- Considering the fact that the appellants have already paid the duty, interest and equivalent amount of penalty - redemption fine is excessively high. - redemption fine reduced to Rs. 10,000/- from 2,50,000/-.
2011 (6) TMI 555

Whether provisions of section 234C are not attracted even though the cheques were realized after the due dates for payment of advance tax even though the assessee had deposited the cheques in the bank within time – Held that:- cheques were presented and deposited before the authorized banker within the due date of payment of advance tax. Cheques were admittedly encashed and amounts were realized subsequently. It is not the case of the revenue that the cheques were returned unpaid at any point of time.
2011 (6) TMI 554

Confiscation of goods - goods seized on the ground that they have violated Copyright Act 1957 - Counsel submitted that allegations made against them are regarding infringement of provisions of Section 51 (a) & (b) of Indian Copyright Act, 1957 and 11(2) (n) & (u) of the Customs Act,1962 read with Section 113(d) of Customs Act, 1962. The contention is that the said provisions relates to import of goods. Section 53 of Copyright Act, 1957 also relates importation of infringing copies – Held that:- provisions of law invoked in this case i.e Section 51(a) & (b) of the Copyright Act, 1957 and the notification issued under the provisions of Section 11 (2) (n) & (u) relates to goods which are prohibited to be imported issued under Section 53 of the Copyright Act, 1957 which also relates to importation of infringing copies. The department could not produce anything contrary to the above. Commissioner's order is not sustainable in law. The same is set aside and the appeals is allowed.
2011 (6) TMI 553

Refund – unjust enrichment – Held that:- Bill of Entry clearly indicates that the Assessing Officer has enhanced the rate of duty from 5% to 15% and the said amount was paid by the appellant. It would indicate that the appellant had collected the amount of duty as per Bill of Entry in the invoices and which also indicate that the appellant were charging Rs. 15,000/- per CBM for few of the consignments sold by him. some of the invoices also indicate a price of Rs. 12,000/- and Rs. 13,000/- per CBM as submitted by the ld. Counsel. assessee’s own evidence in form of Chartered Engineer’s (sic) certificate indicates the inclusion of the customs duty paid as per Bill of Entry, appellant has not passed the hurdle of unjust enrichment. appellant is rejected.
2011 (6) TMI 552

100% EOU - cleared goods to the Domestic Tariff Area (DTA) availing benefit of concessional rate of duty under Notification 2/95-CE dated 04/01/1995 - alleged in the show-cause notice that the appellants were liable to discharge duty liability @ 33.54% of the assessable value whereas they have discharged duty liability @ 31.37% of the assessable value and similarly for the period March 2001 they have short-paid duty to the extent of 1.99% (i.e. duty payable @ 31.43% minus duty actually paid @ 29.44%) - Held that:- in the Indoworth (2004 - TMI - 48996 - CESTAT, NORTHERN BENCH, NEW DELHI - Central Excise) scope of method of duty calculation provided under Notification No. 2/95-CE cannot be enhanced or varied by issuing a circular without amending the Notification and such amendment came into force only on 01/03/2002. Therefore, the method of calculation of duty as provided under Notification No. 2/95-CE would be applicable for the period prior to 01/03/2002 and has to be followed for computation of duty in respect of clearance made to DTA prior to 01/03/2002. The ratio of the judgment applies squarely to the facts of the present case. In the instant case, period for which duty has been demanded pertains to April 2000 to March 2001 i.e. prior to amendment of Notification 2/95-CE dated 04/01/1995 vide Notification No. 11/02-CE dated 01/03/2002. Therefore, the appellant was required to discharge duty liability only at the rate computed at 50% of each of the duties of customs leviable and not @ 50% of the aggregate duties of customs leviable. order set aside. appeal is allowed
2011 (6) TMI 551

Duty - duty under Section 3A of the Central Excise Act, 1944 - annual capacity was determined under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. The Commissioner while determining the production capacity of the appellant factory took into account not only the number of chambers (which were three in number) but also the cooling zones and arrived at the total number of chambers at 3.239 chambers – Held that:- to be counted as a chamber, the equipment has to be installed in or attached to stenter and further the said equipment should aid in the process of heat setting or drying of the fabrics, the cooling zone is neither installed in nor attached to the stenter. Further it is not aiding the process of heat setting or drying of the fabrics but merely cools the fabrics which comes out of the stenter, the inclusion of the cooling zone in the number of chambers used for processing is incorrect in law, order to the extent of excluding the length of the cooling zone in the computation of chambers, appeal is allowed
2011 (6) TMI 550

Stay - value of royalty, how much amount is to be includable on account of royalty and whether the appellants have included the value of royalty in the assessable value or not – Held that:- matter needs examination. appellant directed to deposit a 50% of the duty involved. appeal as well as stay application is disposed of
2011 (6) TMI 549

Assessable value - assessee claimed deduction towards freight and insurance – Held that:- Merely because the goods have been delivered at the buyer's premises and transportation charges have been recovered from the buyers, it cannot be concluded that the sale has taken place at the buyer's premises, therefore, on the basis of evidences available on record, the lower appellate authority has come to the conclusion that the ratio of the judgment in the case of Associated Strips vs. CCE and Escorts JCB referred to supra are applicable to the facts of the case, duty demand set aside and the imposition of penalties on the Directors, appeals is dismissed
2011 (6) TMI 548

Disallowance of deduction on account of cash discount - appellants are not contesting the demands confirmed for the period after 01/07/2000 but they are contesting the confirmation of demands for the period prior to 01/07/2000 and submitted that prior to 01/07/2000 the appellants are entitled for deduction on account of cash discount from the assessable value as per the old valuation rules – Held that:- In the case of H & R Johnson (India) Ltd. (1999 - TMI - 91407 - CEGAT, MADRAS - Central Excise), the Hon'ble apex court has held that the cash discount is deductible from the assessable value across the board and is not restricted only to those transactions where the individual buyers have availed of the discount. appellants are entitled for deduction on account of cash discount from the assessable value for the period prior to 01/07/2000 and is not entitled for the deduction on account of cash discount from the assessable value for the period post 01/07/2000. appeal is disposed of by way of remand.
2011 (6) TMI 547

Transaction value based valuation or MRP based valuation - Section 4 or section 4A - respondent has cleared the mango avakai pickles without declaring the MRP - product was distributed for sale promotion and they determined the assessable value under Section 4 of the Central Excise Act 1944 – Held that:- pickles in question was not intended for retail sale, as per Rule 3 of Standard of Weight and Measurement (Package Commodity) Rules does not apply and MRP is not required to be affixed on the impugned goods, valuation as per Section 4A is not required. As the respondent has cleared the goods on transaction value to M/s Nestle and same has been clarified by the Board circular no. 625/15/02-CE dated 28.2.2002, Appeal filed by the revenue is dismissed
2011 (6) TMI 546

Drawback - Revision Application - goods to be not fitting the description of “Sandals” but were found to be chappals - after examination the goods were found fitting in description of leather chappals at Sr. No. 640301A-4.7% and hence the shipment was allowed provisionally - case was adjudicated for entitlement of DBK S.No. 640313 @ 1% only – Held that:- applicable Drawback Schedule is an independent piece of legislation and other (provisions) of Customs Act, 1962 including Customs Tariff can be of “guiding factor” role but cannot form the sole basis of deciding the impugned classification. Government therefore after taking into consideration the simple and plain reading of the applicable Drawback schedule along with the fact of basic constituent material (i.e. leather), categorization as per council of leather exports, C.B.E. & C. Circular No. 08/2002-Cus., dated 30-1-2002 and facts of maximum coverage/contact areas etc. is of considered opinion that any (additional) re-enforcements, attachment, accessories and components should not form basis of altering the basically qualified classification of impugned export goods herein i.e “Leather Sandals”. there is no legal bar so as not to attach wooden heel to “Ladies Leather sandals with leather neolite sole, heels”, Government sets aside the impugned orders and allows the applicant's claimed Drawback under Drawback S.S. No. 640311A @ 7.5% (with relevant cap.). Revision Application thus succeeds
2011 (6) TMI 545

Ultra vires circular - Served From India Scheme - challenging the policy circular dated 1 January 2008 to the extent that it impacted upon Telecommunication service providers – Held that:- foreign exchange earned cannot be defined as the remittance of foreign exchange less an outflow. Where the policy intended that the concept of the net foreign exchange should be applied it has stipulated so expressly. In the absence thereof, it was wholly impermissible for the DGFT, by means of a policy circular, to direct the implementation of what constitutes clearly an amendment of the policy. circular dated 15 July 2010 in so far as it directs the implementation of the decision taken in the meting of the Policy Interpretation Committee dated 5 July 2010 is ultra vires the Foreign Trade Policy for 2004-09. directions contained in para 3 of the Circular dated 15 July 2010 to reopen the SFIS cases and to make recoveries in accordance with the decision taken at the PIC meeting on 5 July 2010 is quashed and set aside
2011 (6) TMI 544

Anti-dumping duty - Advocate appearing for the domestic industry states that the appellant-Association has not demonstrated before the Designated Authority that it is an Interested party under the Rules. She also states that the Designated Authority had taken into account the Association’s representation while giving his Final Findings and that the details furnished for the post investigation period could not have been taken into account by the Designated Authority – Held that:- Designated Authority before recommending imposition of anti-dumping duty was required to provide personal hearing to parties who have filed objections and adduced evidence before him. - matter remanded back to the Designated Authority. Appeal is allowed
2011 (6) TMI 543

Defective C forms - Correction in C form - Revision application - disallowance of concessional rate of tax claimed by the company on inter-State sales of diesel and other petroleum products – Held that:- corrections or substitutions made in the C form should be in line with the corrections made by the buyer in the triplicate copy retained by him and produced before the assessing officer for assessment under the local Sales Tax Act in that State. - assessing officer is directed to return the rejected C forms. petitioner is granted three months' time from date of return of C forms from the officer to produce corrected copies and furnish details of payments received as above for the officer to verify and revise the assessments.