|
Advanced Search Options
Case Laws
Showing 501 to 520 of 1327 Records
-
2012 (11) TMI 833
Cenvat credit on the security service - at assessee’s pump house for pumping water, which is required as a coolant in their manufacturing operations – Held that:- Without water, the manufacturing operations cannot be carried out and the water has to be pumped from Kundalika river, which is situated away from their factory and there is a pump house for undertaking this activity. The security services provided there is integrally connected to the manufacturing activity at the appellant's factory - they are entitled for the credit
-
2012 (11) TMI 832
Waiver of pre-deposit - credit card business – business auxiliary service (BAS) - VISA/Mastercard - payments received by the appellants for promoting the business of the brand name owners. - held that:- the appellants were promoting the business of VISA/MasterCard and the impugned payments were for that. - So we are prima facie not in agreement with the first leg of the argument that the activity was only that of brand name promotion taxable from 1-07-2010. The service could qualify both as promoting the business of Visa/Mastercard and also as providing service on behalf of Visa/Mastercard.
Export of services - held that:- this issue is presently under consideration in the case of Microsoft Coprn. (India) (P.) Ltd. v. CST [2011 (11) TMI 60 - CESTAT, NEW DELHI] before Delhi Bench. The matter stands referred to a third Member to resolve the difference in opinion between the Members of the Bench which heard the matter. - At this stage the benefit of the difference in views could go to the appellant. So at this stage we go by the location of the service provider and take a tentative conclusion that the services were exported. - Stay granted.
-
2012 (11) TMI 831
Pre-arrest bail – Purchase of land by Non resident - Violation of provisions of FEMA (Foreign Exchange Management Act) - William Singh Sandhu is a citizen of United States of America and is not an Indian citizen. There are restrictions in law on his right to purchase agricultural land in India. He has purchased agricultural land in India by giving the address of Gurvinder Singh as his address. William Singh Sandhu has already been arrested in the case and is said to have been released on regular bail. - While Gurvinder Singh is the attorney of the vendor who has no grouse in the matter, the other petitioner is the attesting witness of the sale deed - custodial interrogation of the petitioners is required in this case - case is based on documentary evidence for its proof. When William Singh Sandhu, the main accused has already been arrested and released on bail, the petitioners appear to be entitled to pre-arrest bail - interim anticipatory bail to petitioner allowed
-
2012 (11) TMI 830
Refund of Special Additional Duty denied - appeal rejected as appellant not authorized to file - Held that:- The appeal before the Commissioner (Appeals) was filed by a chartered accountant of the company without authorization as it would be unconscionable to hold that the chartered accountant fitted in the meaning of principal officer. - The very fact with the present appeal of the company has been filed by one of its directors would indicate that the appellant has become wiser after noting the relevant provisions of the CESTAT (Procedure) Rules 1982, which also require an appeal of any company to be filed by its principal officer .
The appellant has not produced a copy of the memo of appeal filed with the Commissioner (Appeals) to prove that the subject appeal was filed by Shri Satish Kumar as authorized representative of the company - against assessee.
-
2012 (11) TMI 829
Refund - method of calculation of the refund - Notification No. 94/96-Cus. - exemption of the goods to the extent of drawback received. - Revenue has taken the stand that while sanctioning the refund, benefit of CENVAT credit that may be available to the appellant has to be deducted from the amount of refund payable to the appellant – Held that:- Deduction of CENVAT credit amount by sanctioning refund does not appear to be correct since no provision of law where the future CENVAT credit admissible can be taken into account while calculating the customs duty payable under Notification No. 94/96-Cus - appellant has made out a prima facie case in their favour - requirement of pre-deposit is waived
-
2012 (11) TMI 828
Writ Appeal - conversion from DEPB scheme to Duty drawback scheme - appellant/petitioner is an exporter of coir products and originally he sought to have the benefit under the DEPB scheme - earlier HC in a writ petition of the petitioner [2012 (9) TMI 347 - KERALA HIGH COURT] directed the department to consider the claim - Pursuant to the said verdict, the matter was considered by the competent authority, who passed order dated 20-9-2011 whereby the claim was rejected
Held that:- there was no declaration that the writ petitioner was entitled to have the benefit though such a relief was prayed for in the said Writ Petition. According to the respondents, the writ petitioner is not entitled to have the benefit as sought for, which resulted in Ext. P7 order. If the writ petitioner/appellant is aggrieved of the said order, it is open to the party to have it challenged by way of availing the statutory remedy by way of appeal under Section 129A of the Customs Act.
-
2012 (11) TMI 827
Whether a secured creditor of a registered company enjoys equal rights as an unsecured of a company to have its winding-up petition - Held that:- A secured creditor of a company has the legislative mandate to present a winding-up petition on the several grounds recognised in Section 433 including on the basis of the company’s inability to pay its debts. The issue here is whether a secured creditor, which founds its petition only on Section 434(1)(a) to raise the presumption of the company’s inability to pay its debts, would be able to establish the legal fiction without demonstrating the inefficacy or inadequacy of its security that the expression “neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor” in the relevant provision envisages.
The rules in insolvency were to apply to companies which had been wound up in the event the value of the assets of the company was insufficient to meet the claims of its creditors, but such rule applied only to cases of winding-up on the ground of insolvency. It is beyond question that most rules of insolvency apply in the assessment of the entitlement of the creditors of a company in liquidation. But that is of no relevance in the present case. The company has not been wound up; indeed, we are two steps removed from such a situation since the present assessment is as to whether this petition made by a secured creditor, relying exclusively on Section 434(1)(a) for the court to presume the inability of the company to pay its debts, should be admitted for being advertised in the absence of the petitioning creditor having asserted or established the inefficacy or the inadequacy of the securities that it enjoys.
The rules in insolvency were to apply to companies which had been wound up in the event the value of the assets of the company was insufficient to meet the claims of its creditors, but such rule applied only to cases of winding-up on the ground of insolvency. It is beyond question that most rules of insolvency apply in the assessment of the entitlement of the creditors of a company in liquidation. But that is of no relevance in the present case. The company has not been wound up, indeed, we are two steps removed from such a situation since the present assessment is as to whether this petition made by a secured creditor, relying exclusively on Section 434(1)(a) of the Act for the court to presume the inability of the company to pay its debts, should be admitted for being advertised in the absence of the petitioning creditor having asserted or established the inefficacy or the inadequacy of the securities that it enjoys.
The inevitable conclusion from the discussion herein that a secured creditor of a company which has not established the inefficacy or the inadequacy of the security held by it may maintain a petition for winding up the company but such petition, if founded solely on the legal fiction under Section 434(1)(a) of the Act, will not qualify either to be admitted or for any order of winding-up to be passed thereon. Since the petitioning creditor here has neither averred nor otherwise established that the security that it enjoys is inefficacious or inadequate to meet its claim against the company, the petition cannot be admitted.
Petition is permanently stayed with liberty to the petitioner to launch fresh winding-up proceedings upon exhausting its remedies against the securities that it enjoys. As a consequence an application under Section 450 of the Companies Act, is dismissed. The interim order subsisting on such application is vacated with immediate effect and the official liquidator is discharged as the provisional liquidator of the company. There will no order as to costs in either case.
-
2012 (11) TMI 826
Cenvat credit on the duty paid on PVC resin - denial of claim on clandestine removal - Held that:- The entire case of the Revenue is based upon the shortages detected at the time of visit of officers, and statement of Shri M K Jain, their authorized representative who was a new employee to the appellant and as such, was not aware of the Central Excise procedures. He in his statement has accepted the shortages only and has nowhere admitted any clandestine activity on the part of the appellant & was not aware of the reasons for such shortages.
As Revenue has not further conducted any investigation so as to find out the alleged buyers of the said raw material or final product & no questions were put to Shri Jain as to what has happened to material found short. Thus admission on the part of assessee about the short found raw material by itself is no ground for arriving at an adverse finding against the assessee.
As decided in Commissioner of Central Excise Kanpur vs. Minakshi Castings [2011 (8) TMI 896 - ALLAHABAD HIGH COURT] shortages of finished stock without evidence of clandestine removal cannot lead to inference of evasion of duty - in favour of assessee.
-
2012 (11) TMI 825
Refund of unutilized Cenvat credit - inputs used in manufacture of Polyester Staple Fiber (PSF) exported under Bond/Letter of Undertaking - Held that:- As examined in SHELL INDIA MARKETS PVT. LTD. Versus COMMISSIONER OF C. EX., BANGALORE [2012 (10) TMI 34 - KARNATAKA HIGH COURT] it is necessary to verify not only that particular input service is consumed for providing particular output service but also that eligible service received under various invoices have actually gone into consumption for providing impugned exported output service and not utilized for other purposes.
Though these observations of Hon’ble High Court are in respect of input services, these are squarely applicable to inputs also as under Rule 5 of the Cenvat Credit Rules inputs and input services are treated at equal footing. Thus refund of Cenvat credit in respect of inputs is admissible if those inputs have actually gone into consumption of exported goods. The matter needs to be remanded back to the original authority for adjudicating the matter afresh in view of the decision of the in the case of Shell India Markets Pvt. Ltd. (supra).
-
2012 (11) TMI 824
Notification No. 162/86-CE - bodies built on the motor vehicle chassis - benefit denied as available on goods classified under Chapter heading 87.02, 87.03 and 87.04 - assessee deemed to be covered under the heading 87.07 - Held that:- As decided in AMBALA COACH BUILDERS Versus COMMISSIONER OF C. EX., NEW DELHI [2000 (5) TMI 70 - CEGAT, COURT NO. II, NEW DELHI] a practice prevalent regarding levy of duty of excise on the bodies built by independent body builders on the motor vehicle chassis under Headings 87.02 to 87.04 instead of Heading 87.07 and that such bodies were liable to a higher amount of duty of excise than what was levied according to the said practice during the period from 1-5-1991 to 28-2-2001. The Central Government by the said Notification has directed that the duty payable in excess shall not be required to be paid in respect of bodies built by independent body builders on the motor vehicle chassis on which the duty of excise was short-levied during the aforesaid period in accordance with the said practice.
As the demand in the present matter relates to the period specified in Section 11C. Notification and the appellants have paid duty under Headings 87.02/87.04 they are eligible to the benefit of the Notification. Accordingly, they are not liable to pay any duty - in favour of assessee.
-
2012 (11) TMI 823
Conodonation of delay - Waiver of pre-deposit of duty demand, interest and penalty - Delay of 20 days beyond the prescribed period of 60 days in filing Appeal - held that:- Proprietor of the appellant firm was indisposed due to illness and also that his counsel could not file appeal in time because of unfortunate demise of his relative. - delay is condoned in filing of appeal and set aside the impugned order passed by the Commissioner (Appeals) and remand the matter back to the Commissioner (Appeals) for de novo adjudication on merits after giving opportunity of being heard the appellant.
-
2012 (11) TMI 822
Demand and penalty – shortage of input – allegation of clandestine removal of goods – Held that:- Merely because the assessee chooses not to contest the demand on account of shortages, so as to avoid litigations, by itself, does not mean that allegation of clandestine removal stand established against him, especially in the absence of any corroborative evidence to that effect - no justifiable reasons to impose penalty upon the appellant
-
2012 (11) TMI 821
Duty and penalty – job worker - area based exemption - non filing of declaration - Notification No. 50/2003-C.E., dated 10-6-2003 read with Notification No. 76/2003-C.E. – Held that:- appellant having its factory in Himachal Pradesh which is covered by the notification should not be denied the benefit of notification on the said technical ground. - the appellant having a belief that the activity carried out by the appellant does not amount to manufacture, could not have filed a declaration for availing the benefit of said exemption notification. - the principal manufacturer i.e. M/s. Khaitan Electrical Ltd. located in that area is itself enjoying the benefit of notification in question, denial of the same to his job worker would not be in the interest of justice.
Waiver of pre-deposit – Held that:- Appellants have pleaded financial hardship that their factory closed, the proprietor is without any job is dependent on his children for day to day requirement - factory is lying closed and no contrary has been brought on record as regards financial position of the proprietor - unconditional stay granted - pre-deposit of duty waived
-
2012 (11) TMI 820
Demand of duty - manufacture of excisable as well as exempted goods - common inputs and are used in both dutiable and exempted goods – Held that:- In the absence of non maintenance of separate accounts in respect of duty and exempted goods as per the provisions of Rule 6 of the Cenvat Credit Rules, 2002 lower authorities have held that the appellant is required to pay an amount equal to 8%/10% of the total value of the exempted goods - appellant was following the procedure even before the retrospective amendment came into picture - demands of an amount equivalent to 8%/10% of the value of the exempted goods is incorrect and unsustainable - order is set aside and the appeal is allowed
-
2012 (11) TMI 819
Benefit of Notification No. 56/95 - Power Driven Pump Sets – Held that:- Board’s Circular not only deals with classification but also underlines that I.C. Engine may be treated as an integral part of P.D. Pump. Moreover, diesel engine is an I.C. engine - Notification No. 56/95, dated 16-3-1995 exempts power-driven pumps primarily designed for handling water, namely, centrifugal pumps (horizontal or vertical), deep tube-well turbine pumps, submersible pumps, axial flow and mixed flow vertical pumps - Revenue’s Appeals are dismissed.
-
2012 (11) TMI 818
Denial of service tax credit on the ground - service tax registration numbers of the suppliers are not available on invoices – Duty paying document - Held that:- Non-mention of the registration number of the service providers can be rectified by obtaining certificates showing service tax registration number in respect of these invoices which can be duly authenticated by the concerned jurisdictional Central Excise officers and submitted by the appellants - order shall stand modified and the service tax credit in respect of these invoices will stand allowed
-
2012 (11) TMI 817
Challenge to the levy of excise duty on coal - Petitioner challenged the levying of 5% excise duty with cess on the coal purchased by them from the Coal India Ltd. claiming that levying of such 5% of excise duty is illegal and instead ought to have been levied only 1.03% duty in terms of the Government of India’s Notification No. 1/2011-C.E., dated 1-3-2011. – Held that:- Coal attracts excise duty at the rate of 5% plus cess w.e.f. 1-3-2011. However, the aforesaid excise duty will be exempted and leviable only to the extent of 1% ad valorem plus cess, in the event credit of duty on inputs has not been taken under the provisions of CENVAT Credit Rules, 2004 as also provided under the Government of India’s Notification dated 1-3-2011.
Since Coal India Ltd. as a manufacturer of “coal” has decided to avail credit of duty on inputs under the provisions of CENVAT Credit Rules, 2004, the exemption provided under Notification No. 1/2011-C.E, dated 1-3-2011 will not be applicable. Therefore, excise duty at the rate of 5% would be leviable on “coal”. The writ petitioners who are mere traders and not manufacturers, obviously, cannot claim CENVAT Credit under the CENVAT Credit Rules, 2004 and accordingly, has to pay the excise duty on coal at the rate of 5% plus cess on duty as a purchaser. - Decided against the petitioner.
-
2012 (11) TMI 816
Condonation of delay of 140 days in filing appeal - order-in-appeal was passed on 14-1-2011 - factory was taken over by the bank for recovery of certain dues and was in the possession of the bank as is clear from the documentary evidence produced on record – Held that:- Limitation period expired around 18-4-2011. Before the expiry of the said period, the appellant entered into correspondence with the office of Commissioner (Appeals) for supply of the copy of order - fact itself reflects upon the non-receipt of the order by the appellant - there was still a period of one month available to appellant to file the appeal and if the Commissioner (Appeals) would have served a copy of the order immediately to the appellant on 17-3-2011, the appellant could have filed appeal well in time - date of communication of the order should be taken as 19-7-2011 when the same was subsequently supplied by the office of Commissioner (Appeals) - COD allowed
-
2012 (11) TMI 815
Loss on Purchase and Sale of Shares - Business loss vs Speculation loss - held that:- The transaction of purchase and sale of shares would be held as speculative business only if the company was hit by the explanation to section 73 of the Act. The implication of the explanation is that if a company incurs a speculation loss in a manner deemed in the explanation such loss shall not be set off except against profit and gains, if any, of another speculation business
But, the explanation has provided two exceptions. The first exception is available in the case of a company whose gross total income consists mainly of income which is chargeable under the head “interest on securities”, “income from house property”, “capital gain” and “income from other sources”. The second exception is in the case of a company whose principal business is business of banking or granting loans and advances.
As seen from the facts of the present case, though the assessee made a plea that the it is carrying on multiple business as principal business, but the facts do not support the plea of the assessee. - held as speculation loss - Decided against the assessee.
Claim of bad debts in respect of certain sales made to foreign companies - held that:- Debt arising in the course of business activity is to be considered as bad debt if it is written off in the books of account as per the provisions of section 36(2)(iii) of the Act. In the present case the assessee submitted that it had obtained permission from RBI. The assessee is directed to adduce necessary evidence as the assessee has failed on earlier occasion to furnish necessary evidence. - matter remanded back.
-
2012 (11) TMI 814
Applicability of sec 172 vs sec 44B - Regular / Occasional Shipping Business – CIT(A) has decided that, Once a person claims that it is not engaged in occasional shipping business and wants to go out of the ambit of section 172, the recourse is provided in section 172(7) only and for that it has to opt for filling return u/s 139(1). Since, the appellant has opted for the option to be assessed u/s 172(7) by filing return of income u/s 139(1) even before 172(4) combined order was passed and also combined with the fact that they approached the AO at Mumbai to issue the 100% DTAA tax relief certificate showing their intent to be assessed under the regular provisions of the Act, that the appellant is in regular shipping business and liable to be assessed under other provisions of the Act including 44B, and not u/s 172(4).
Held that:- M/s Balaji Shipping Lines FZCO, UAE has accepted the liability to be dealt with the provisions of section 172(7) of the Act. The jurisdictional AO may, therefore, verify the position and take such action as may be warranted in law in terms of section 172(7) to ensure that the income of the assessee from the 86 voyages does not escape assessment as per normal provisions of the Act. - Appeal of the revenue dismissed - Decided in favor of assessee.
............
|
9911796707
