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Case Laws
Showing 481 to 500 of 920 Records
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2010 (7) TMI 736
Whether catering service can be considered as an input service for manufacture of finished goods - Held that:- service tax credit in respect of catering service is not admissible in respect of manufactured goods, order set aside by confirming the demand of service tax and interest while setting aside the penalty imposed. The department's appeal is partly allowed.
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2010 (7) TMI 735
Refund - excess duty paid - assessee paid the duty at the rate of 16% as against 8% - customer has not paid his excess duty to the assessee, he relied on a debit note raised by the customer in his name - Held that:- customer is not claiming refund, when he has raised a debit note, when he refuses to pay excess duty claimed, the only inference to be drawn is that the assessee has not received that excess duty which he has paid to the department, in which event, the department is bound to refund to the assessee the excess duty calculated which is not in dispute, finding of the Tribunal is sound and just and does not call for interference, substantial question of law raised is answered in favour of the assessee and against the revenue, appeal dismissed.
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2010 (7) TMI 733
Retail sale – confiscatioin of goods - declaration as required under Rules 6 and 6(1A) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 - Retail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein. - Proviso to Rule 2(p) further clarifies that the ultimate consumer shall not include industrial or institutional consumers, which means retail package means the packages which are intended for retail sale and which are not meant for industrial or institutional consumers. The packages in question are seized from a retail shop which prima facie means the packages were meant for retail sale to a retail consumer - Held that:- packages were seized in the retail outlet. Industrial consumers will have to buy the packaged commodities directly from the manufacturers or packers for using their products in the industry, only then the provisions of Rule 6 is exempted. Hence, the provisions of Rule 6 are applicable to the matter on hand, Petition fails and the same is dismissed.
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2010 (7) TMI 730
Deduction under section 80-I of the Act - cost of the raw material and consumable stores purchased by SMS-I was transferred and debited to the profits and loss account of various units - units had realised the maximum realisable price from the head office - Held that:- section 80-I(8) are not applicable in the instant case and hence the proviso to section 80-I(8) can also not be invoked, entire exercise of re-allocation of various expenses on the facts and in the circumstances of the case was unwarranted, question answered against the Revenue.
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2010 (7) TMI 728
Block assessment- validity of initiation of proceedings under section 158BD- Held that:-The satisfaction contemplated under section 158BD to the effect that any undisclosed income belongs to any person other than the person with respect to whom search was conducted under section 132 or requisition made under section 132A, is to be recorded in writing by the AO of the person with respect to whom search under section 132 or a requisition under section 132A is made. Further, the satisfaction contemplated under section 158BD is required to be recorded by the AO of the person searched at any time but not later than the finalization of assessment of undisclosed income for the block period under Chapter XIV-B in the case of the person put to search or requisition, as the case may be. Secondly, insofar as the issuance of notice under section 158BD is concerned, the same is to be issued by the AO of the person, other than the person put to search under section 132 or requisition under section 132A. That too, after transmission of the relevant material from the first-mentioned AO, i.e., the AO of the person put to search under section 132 or requisition under section 132A .Therefore, the proceeding initiated by issuing the notice under section 158BD in the case of the assessee was not valid proceeding. As such the block assessment framed in the hands of the assessee was bad in law. See Manish Maheshwari v. Asstt. CIT (2007 - TMI - 40384 - Supreme Court). Decided in favor of the assessee.
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2010 (7) TMI 727
Refund in terms of notification No. 41/2007-ST - Such refund claim is required to be claimed within a period of six months from the end of the quarter, during which the exports have been made - appellant filed refund claim after the expiry of six months, as a condition of notification, the same stands rejected by the lower authorities as time-barred - Held that:- When a notification itself provides the period for claiming the exemption in terms of the said notification, such period cannot be extended by taking recourse to the provisions of section 11B, inasmuch as, rightly observed by Commissioner (Appeals), it is not a simple case of refund of excess duty paid but is a refund arising out of an exemption notification, which provides a specific mode and procedure for claiming of refund of duty paid on the various services availed by an assessee, order upheld and appeal rejected.
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2010 (7) TMI 724
Service Tax on 'free after sale service' - held that:- this issue stands settled by the decision of the Tribunal in ASL Motors Pvt. Ltd. Vs Commissioner of Central Excise & Service Tax, Patna [2007 -TMI - 3419 - CESTAT, KOLKATA] which has been followed in the case of Pillai & Sons Motor Co. Vs Commissioner of Central Excise, Trichy [2009 -TMI - 33829 - CESTAT CHENNAI]. - Decided in favor of assessee.
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2010 (7) TMI 722
Proof of investment - source of investment - onus to prove - acquisition of plot - held that:- In vie of K.P. Varghese v. ITO (1981 -TMI - 5862 - Supreme Court), wherein it has been held that the burden of proving is that of Revenue when there is allegation of understatement or concealment in the consideration shown. - Further
Where investment's could not be conclusively proved question of source of investment's will not arise.Thus appeal filed by revenue is dismissed. - Decided in favor of assessee.
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2010 (7) TMI 720
Applicability of 194J on leaseline charges and VSAT charges Held that:-Reimbursement of the expenses incurred by the Stock Exchange in lieu of infrastructure and trading facilities provided by the Exchange to the Members, will not be liable for tax deduction under Section 194J.The transaction charges paid by a Member to the Stock Exchange on the basis of the volume of transactions is a payment for the use of the facilities provided by the Stock Exchange and not for any services, either technical or managerial, and therefore the provisions of section 194J and consequently section 40(a)(ia) are not attracted. In case of CIT vs Bharti Cellular 2008 -TMI - 75309 - DELHI HIGH COURT went on to observe that the expression “technical services” would have reference to only technical services rendered by a human being but would not include any services provided by machines or robots.
Applicability of 194C -Agreement of Jobbers and assessee was that of co-sharers of profit-Held That:-Were separate joint ventures entered into by the assessee and agreement between Jobbers and assessee is on principal to principal basis and in these circumstances the provisions of section 194C are not attracted because in essence and substance the amounts paid to the jobbers or arbitragers did not in reality represent the expense of the assessee company but represented payment of the share of the jobbers / arbitragers under the agreement entered into with them. In such a case the assessee is right in saying that there was no question of deducting any tax at source.
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2010 (7) TMI 718
Block assessment - recording of satisfaction under section 158BD - completion of assessment under section 158BC - period of limitation - held that:- It is not disputed that the premises of the S. K. Bhatia and group were searched on February 5, 2003, and block assessment under section 158BC was framed on March 30, 2005. The satisfaction as contemplated under section 158BD in the case of the assessee was recorded on July 15, 2005, as observed by the Assessing Officer of the person searched, i.e., the Assistant Commissioner of Income-tax, Central Circle-II, Ludhiana, and notice was issued on February 10, 2006. Since the block assessment in the case of the S. K. Bhatia group under section 158BC of the Act was framed on March 30, 2005, whereas the satisfaction as contemplated under section 158BD in the case of the present assessee was recorded on July 15, 2005, thus, the proceedings were bad in law. - Decided against the revenue.
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2010 (7) TMI 716
Right to Information Act, 2005 - Under Section 11(1) - The logic of the Section 11(1) RTI Act is plain. Once the information seeker is provided information relating to a third party, it is no longer in the private domain. Such information seeker can then disclose in turn such information to the whole world. There may be an officer who may not want the whole world to know why he or she was overlooked for promotion. The defence of privacy in such a case cannot be lightly brushed aside saying that since the officer is a public servant he or she cannot possibly fight shy of such disclosure. There may be yet another situation where the officer may have no qualms about such disclosure. And there may be a third category where the credentials of the officer appointed may be thought of as being in public interest to be disclosed. The importance of the post held may also be a factor that might weigh with the information officer. This exercise of weighing the competing interests can possibly be undertaken only after hearing all interested parties - Therefore the procedure under Section 11(1) RTI Act - Therefore, holds that the CIC was not justified in overruling the objection of the UOI on the basis of Section 11(1) of the RTI Act and-directing the UOI and the DoPT to provide copies of the documents as sought by Mr. Kejriwal.
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2010 (7) TMI 714
Exemption - Under Rule 19(2) read with Notification No. 43/2001-C.E. (N.T.) - Drawback claim an account of Exports goods - Applicant procured the input/packing material MS Drums and Multiwall papers without payment of duty under Rule 19(2) of Central Excise Rules, 2002 and exported the manufactured goods Skimmed/Full Cream Milk Powder & Butter Oil etc - It is quite evident that conditions of the said rule is not satisfied - Therefore All Industry rate or Duty drawback, even the customs component, cannot be availed of when the inputs used in the manufacturing the export goods were procured either duty free under Rule 19(2) of the Central Excise Rules, 2002 - Hence, the applicant by way of procuring duty free inputs under Rule 19(2) of Central Excise Rules, 2002 has contravened the clause (ii) of the second proviso to Rule 3(1) of the Central Excise Drawback Rules, 1995 [also conditions No. 7(f) of Notification No. 68/2007-Cus. (N.T.) and condition No. 8(F) of Notification No. 103/2008-Cus. (N.T.)] and therefore no drawback is admissible - Decided against the assessee..
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2010 (7) TMI 712
Whether the customs authorities have jurisdiction to issue any notice or to take any penal under Section 111, Section 113 and Section 114 read with Section 124 of the Customs Act, 1962 against any unit situated within the Special Economic Zone - notified that Section 53 being limited to that extent of ‘authorized officer’, who was earlier empowered to perform certain jobs under Chapter XA, the power of the Customs authorities under the Customs Act, including the power to confiscate and impose penalty under Sections 111 to 114, as enumerated in Chapter XIV of the Customs Act, is not taken away - Thus, we hold that the competent authorities under the Customs Act are still empowered to confiscate any goods under Sections 111 and 112 and impose penalty under Sections 113 and 114, in appropriate case, even with regard to the units situated within the Special Economic Zone. Whether the report submitted by the Customs House Laboratory, Kandla will prevail over the report submitted by the Central Institute of Plastic Engineering & Technology (CIPET), Ahmedabad and Chennai - the competent authority of the customs departments cannot take any action against the writ petitioners on the basis of the report submitted by the Customs House Laboratory, Kandla though it has power to take such action, as permissible under the law, if any irregularity is found pursuant to the report submitted by the CIPET, Ahmedabad or the CIPET, Chennai. The learned Single Judge, having failed to notice the aforesaid facts and the provisions of law and having erred in coming to the conclusion that the officials of the customs departments has no jurisdiction to take any steps in view of the Section 53 of the SEZ Act, 2005, we set aside the order passed by the learned Single Judge.
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2010 (7) TMI 710
Rule 5 of Cenvat Credit Rules, 2004 - lower authorities have rejected the refund claims filed by the appellant in terms of Rule 5 of Cenvat Credit Rules, 2004 during the period June 2007 to March 2008 - following the decision in Malbro Stone Exports [2007 -TMI - 2233 - CESTAT, NEW DELHI] which referred that even if the exports were exempted, the input stage service credit has to be granted - Held that set aside the impugned order and remand the matter to Commissioner (Appeals) for de novo decision after appreciating the declaration of law - Appeal allowed by way of remand
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2010 (7) TMI 708
Valuation - Transaction value, rejection on suspicion that same underdeclared - Held that:- if value declared is rejected, Revenue should establish with details of contemporaneous imports of such or similar goods, that the price declared is not correct transaction value and the value has to be determined under CVR - Commissioner did not reject the transaction value for valid reasons in the absence of contemporaneous imports of comparable CTP machines at higher prices. - In view of the decision of Apex Court in CC, Calcutta v. South India Television (P) Ltd. (2007 -TMI - 1665 - SUPREME COURT OF INDIA), the revision of price, demand of differential duty and interest, confiscation of the impugned machine on the ground that the importer had mis-declared its value and consequent penalties are not sustainable. - Decided in favor of assessee.
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2010 (7) TMI 706
Exemption - green leaves - lands in excess of 10 hectares - notifications No. 41/99-C.E., dated 26-11-1999, 13/2003-C.E., dated 1-3-2003 and 42/2003-C.E., dated 14-5-2003 - proviso to sub-section (1) of Section 11A - In the absence of any specific prescription in the notification, the certificates produced by the respondent one of which was issued by a statutory body cannot be held to be a false claim in order to invoke the proviso to Section 11A(1) for rejecting the exemption granted based on the notification by availing the extended period of limitation - Decided in favour of assessee.
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2010 (7) TMI 704
Reopening - Validity of notice - That section 149 of the Act speaks of time limit for issue of notice and categorically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed - It is submitted that in the facts of the present case, it is apparent that the notices have been dispatched by registered post only on April 7, 2010, hence, the same have clearly been issued beyond the prescribed period of limitation and as such, are time barred - In the present case, the relevant assessment year in each of the petitions is 2003-04 ; the impugned notices are dated March 31, 2010 ; and the said notices were sent for booking to the Speed Post Centre, Ahmedabad, on April 7, 2010 - apex court in the case of GKN Drive- shafts (India) Ltd. [2002 -TMI - 6100 - SUPREME Court] wherein it was held that the impugned notices under section 148 in relation to the assessment year 2003-04, having been issued on April 7, 2010 which is clearly beyond the period of six years from the end of the relevant assessment year, are clearly barred by limitation and as such, cannot be sustained - Decided in favor of the assessee
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2010 (7) TMI 702
Waiver of predeposit - The demand is confirmed after denying benefit of Notification 32/04-ST dated 3-12-2004 on the ground that the abatement of 75 per cent on the total freight charges in respect of the service provided by a goods transport agency to a customer in relation to the transportation of the goods by road subject to the condition that the provider of service gave a declaration that no credit of duty paid on inputs or capital goods used for providing taxable service has been taken aid or the goods transport agency has not availed the benefit of Notification 12/2003-ST dated 20-6-2003 - The revenue submitted that during verification, the appellants failed to produce necessary consignment notes having necessary declaration, hence, the demand is rightly made - Thus, it is not a case for total waiver of demand of service tax -
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2010 (7) TMI 700
Reassessment - Acquisition of immovable property - on the ground that the approach of the competent authority in its reasons to believe was manifestly incorrect and opposed to law, it would be apposite to refer to and deal with this aspect, in the first instance - It is subsection (2) of section 269C which stipulates that where the fair market value exceeds the apparent consideration by more than 25 per cent., it shall be a conclusive proof that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer - In the instant case, since the consideration shown in the sale deed was Rs. 16 lakhs, action could be initiated only if the competent authority had reasons to believe that the fair market value is Rs. 18,40,000 or above - The very fact that even according to the competent authority, the only reason for doubling the rates of residential property for arriving at the fair market value in respect of residential-cum-commercial property is "it is well known" and that itself suggests that there was no material much less tangible material and the competent authority was going by general perception - When the very basis of fixing the said market value is erroneous and without any foundation, raising such an argument that the value fixed is more than 25 per cent. would be clearly preposterous - Appeal is dismissed
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2010 (7) TMI 699
Deduction from the assessable value - Exclusion freight expenses from the place of removal to the place of delivery - Rule 5 of the Central Excise Valuation Rules, 2000 - Held that:- assessee failed to provide the details viz. purchase orders and copy of GIR to verify the claim - Rule 5 of Central Excise Valuation Rules what is permissible for deduction for determining the assessable value is the actual amount of freight from the place of removal to the place of delivery and not any amount arbitrarily claimed to be the freight expenses. - decided against the assessee. Invoice price / transaction value inclusive of freight - equalized freight - appellant's invoices do not mention the freight expenses separately and the appellant claims that the invoice price includes the freight charged on equalized basis from place of removal to the place of delivery, the burden of proving that the invoice price includes the freight expenses and its quantum would be on the appellant, but in this case no evidence in support of this claim of the appellant has been produced by them. - Claim of deduction of freight rejected. Deduction of courier charges - Held that: the courier charges for sending the invoice and bank documents cannot be said to be the charges by the reason of or in connection with the sale of the goods and hence the Commissioner (Appeals)'s order disallowing their exclusion from the assessable value is not correct and is liable to be set aside - Claim of deduction of courier charges allowed.
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