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Showing 501 to 520 of 1831 Records
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2017 (5) TMI 1333
Penalty - Benefit of N/N. 32/99-CE dated 08.07.1999 - CENVAT credit - mis-declaration of place of removal of goods - Held that: - Sub-rule (2) of Rule 26 was inserted by Notification No.08/2007-CE(T) dated 01.03.2007 whereas the clearances involved are for the period from 11.06.2003 to 31.05.2005 and the provisions of said Sub-rule (2) which come into operation on 01.03.2007 were not applicable to the clearances made before 01.03.2007 - penalty not sustainable - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1332
Waste/by-product - whether Ferric Chloride waste is a manufactured product? - Held that: - Board's circular dt. 25/04/2016 clarifying that the by-products/waste arising during the course of manufacture is not excisable - waste/by-product arising during the manufacture process is not a manufactured product and the same cannot be considered as excisable goods even after the introduction of Section 2(d) of the CEA, 1944 w.e.f. 10/05/2008 - demand set aside - appeal dismissed - decided against Revenue.
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2017 (5) TMI 1331
Valuation - erection charges - includibility - Held that: - since no excise duty is payable on the installation cost as has already been settled, it cannot be presumed that the disputed duty has been recovered from M/s. IOCL - From the evidence on record, it cannot be construed that the duty burden has been passed on - appeal dismissed - decided against Revenue.
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2017 (5) TMI 1330
CENVAT credit - duty paying invoices - The ingredients and packing materials are provided to the appellant by BIL - denial of credit on the ground that availment of credit on the basis of endorsed invoices for the above period is irregular particularly in view of the change in the position of rules w.e.f. 01/04/1994 - Held that: - The Larger Bench of the Tribunal in the case of Barmer Lawrie & Co. Ltd. [2000 (1) TMI 74 - CEGAT, NEW DELHI] has held that after 01/04/1994 endorsed invoices are not valid documents for claiming CENVAT credit.
Appeal allowed - decided in favor Revenue.
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2017 (5) TMI 1329
Intermediary product - impregnated special woven fabric - chargeability of duty/marketability - Held that: - goods have emerged during the continuous process of manufacture of tubular bags and have got a self-life of only a few minutes. It is established that this intermediate product cannot be marketed and therefore it cannot be called as excisable goods - the goods are not marketable and therefore are not excisable and no duty of Central Excise leviable on the subject goods - appeal allowed - decided in favor of assessee.
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2017 (5) TMI 1328
Valuation - Dharmada/Charity service - includibility - whether amount of Dharmada/Charity is includible in the assessable value of the excisable goods sold by the appellant? - Held that: - there was nothing more to decide by the adjudicating authority except re-quantification of the duty extending benefit of cum duty price which was ordered by this tribunal by applying the correct rate of duty therefore no discretion was left to the adjudicating authority to decide the issue a fresh on the merit - appellant is entitle for the cum duty benefit and also rate of duty applicable is @ 50% during the period for July to February, 2000 and 40% for the period for March, 2001 to Jun, 2001 - appeal allowed by way of remand.
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2017 (5) TMI 1327
Classification of imported goods - Dumb Floating Cranes Barge Gudami imported from Muscut - The appellant seeks classification of these vessels under 8901.1040 as barges or 8901 90 00 as other vessels for transportation of goods or persons - It is the view taken by Revenue that 8901 10 covers various vessels which on the basis of description, can be inferred as those for transport of persons - whether the goods classified under CTH 8901 10 40 or classified under CTH 8905 90 90? - Benefit of N/N. 21/2002-Cus. dated 1.3.2002 - Held that: - Even though the imported vessels are described as barges, these vessels do not have the engines necessary for self-propulsion and are required to be pulled by means of a tug. Consequently, it does not have the prime requirement of having ability for classifiable under Heading 8901 - Only with the capacity to navigate, the barges can be described as vessels for the transport of persons or goods. Consequently, the classification goes out of the purview of Heading 8901.
Heading 8905 covers vessels of various types whose navigability is subsidiary to their main function. Such vessels need not have the capability of navigation on their own. The imported vessels have cranes on board and can move cargo from ship to shore and vice versa. The purpose of such vessel is to load/unload cargo from ship/shore on to the barge and to move such cargo between ship and shore. Such vessels, in our opinion, will be rightly classifiable under Heading 8905.
Appeal rejected - decided against appellant.
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2017 (5) TMI 1326
Mis-declaration of imported goods - scrap - confiscation - Held that: - in this case there was no seizure of goods because the goods were not available and it had already been consumed - confiscation cannot be ordered in the absence of seizure of goods and therefore, the imposition of redemption fine of ₹ 5,00,000/- is not sustainable in law.
Once the redemption fine is not imposable, consequently penalty u/s 112(a) of the CA also cannot be imposed since there was no seizure of goods in the first place.
Appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1325
Classification of Rubber Process Oil - classified under CTH No. 2707 or under CTH 2710 - Held that: - the matter is covered by the decision of this Tribunal in the case of Kushal N. Desai vs. Commissioner of Customs (Import), Mumbai [2016 (9) TMI 973 - CESTAT MUMBAI], where it was held that the imports of the appellants do contain a higher percentage of aromatic constituent than prescribed for classification under Heading 2710. The alternate heading which describes the imported goods to be waste brings it under the ambit of Hazardous Waste (Management, Handling & Trans-Boundary Movement) Rules, 2008 - the subject item is rightly classifiable under CTH 27079900 - appeal dismissed - decided against appellant.
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2017 (5) TMI 1324
Refund claim - CVD/cess on imported rubber - whether appellants are liable to pay at the time of import additional duty of customs under Section 3 (1) of Customs Tariff Act, 1975 equal to such duty of excise levied as cess under Rubber Act?
Held that: - circular dt. 2.2.97 and 29.9.97 clarifying that for imported goods equivalent amount of cess leviable as duty of excise has to be collected as additional duty of customs and that even though Rubber Act, 1947 would provide for collection of cess on imports, additional duty of customs is payable on imported rubber by virtue of Section 3 of CTA, 1975.
The additional duty of customs is very much leviable under Section 3 (1) of the CETA in respect of imported rubber equal to the duty of excise levied as cess under Section 12 of the Rubber Act, 1947.
Rejection of refund claim justified - appeal dismissed - decided against appellant.
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2017 (5) TMI 1323
Town seizure for non-notified goods - burden of proving - whether in the case of Town seizure for non-notified goods (readymade garments) under Section 123 of the Customs Act, 1962, whether it is the onus of Revenue to prove that the goods are smuggled and whether the order of confiscation with redemption fine and further penalty of ₹ 5 lakhs under Section 112(a) of the Customs Act, 1962, is sustainable?
Held that: - the readymade garments in question, being not notified goods under Section 123 of the Customs Act, 1962, were freely importable. It is well settled that initial burden to prove smuggling of non-notified goods lies on the Department.
The appellants have given cogent explanation along with evidence of import of the goods, through licit route and the same have not been found to be untrue. Further, revenue have rejected the evidences produced, on flimsy ground which is not tenable. I find that the whole case of revenue is based on presumptions and no evidence have been led as to the allegation of smuggling.
Mere failure on the part of the appellant to produce some document to the satisfaction of the Customs Authority does not ipso-facto lead to inevitable conclusion that the goods are smuggled.
Appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1322
Validity of assessment proceedings - natural justice - Held that: - There is absolutely no noting on the file to indicate what happened to the orders passed by the OHA. There appears to be complete failure on the part of the VATO to act in accordance with law and, in particular, to abide by the order of the superior authority, in this case, the OHA and to carry out the mandate of the OHA's orders.
With the impugned orders bristling with so many obvious illegalities, the question of the Petitioner now being relegated to the OHA, as suggested by the counsel for the Respondent, does not arise - petition allowed.
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2017 (5) TMI 1321
Petition for winding up - Held that:- There are serious disputes between the parties with regard to their rights and liabilities, as mentioned above, the parties have already taken recourse to the arbitration proceedings, therefore, the parties should settle their disputes before the Arbitral Tribunal. The winding up petition is not the right remedy for settling the dispute between the parties. For, a winding up proceeding is a summary proceeding, wherein this court is not expected to hold a mini-trial.
Therefore, for the reasons stated above, this winding up petition is devoid of any merit. It is, hereby, dismissed.
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2017 (5) TMI 1320
Addition u/s 44BB - eligibility for the benefit of DTAA between India and UAE - Permanent Establishment in India - Held that:- We note that the assessee has conceded that for the services rendered to Arcadia Shipping Limited, the same needs to be taxed u/s 44BB of the Income-tax Act. Hence, as regards the issue of taxability u/s 44BB of the services rendered to Arcadia Shipping Limited, we set aside the order of learned CIT(A) and restore that of the Assessing Officer.
As regards the services rendered with respect of other works, we note that the duration for each of them was less than nine months. The learned CIT(A) has given a clear finding and we find ourselves in agreement with the same. The Assessing Officer has not based his order on any cogent reasoning. He has presumed that assessee’s representative might have come earlier also before the actual arrival of the barge in the Indian waters. Such hypothesis cannot be sustained. The actual period of the two projects cannot be combined as they are unconnected works. In such situation, the Assessing Officer’s view that the period of the two works should be combined cannot be sustained.
Departmental Representative’s submission that the issue should be considered by applying a different Article than the one applied by the A.O. the same is also not sustainable. The A.O. has invoked Article 5(2)(h) of the DTAA between India and UAE and has based his decision on the analysis thereof. After consideration of the same learned CIT(A) has found that the assessee cannot be held to be liable for tax as the period of the stay was less than nine months required to form a permanent establishment so as to come under the ambit of taxation under this Article. Now learned DR is agreeing that the view of the A.O. is not sustainable, however, he states that the issue should be considered under Article 5(1) of the said DTAA. We find that the above is neither the case of the A.O. nor any ground in this regard has been raised. Hence, we do not find this plea of the learned Counsel of the assessee sustainable. - Decided partly in favour of assessee.
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2017 (5) TMI 1319
Addition u/s 68 - arithmetic mistake committed while uploading the amounts in the return filed for AY. 2009-10 - reopening of assessment - Held that:- We are satisfied that assessee has the capacity to advance the amounts earlier and as confirmed by the parties, assessee received the amounts on 01-04- 2008. It was a simple mistake in uploading the data, while filing the return of income for AY. 2009-10 and there is no unaccounted income which was brought to capital account. The allegations of AO are unfounded and the presumptions of the CIT(A) are equally unfounded. Being a senior officer of the department it is not expected from the CIT(A) to give wrong findings, so as to confirm the order of the AO. Since we have examined the facts, we are satisfied that there is no unaccounted income brought to capital account by assessee. Accordingly, grounds are accepted. Even though assessee contended that the proceedings are wrongly initiated, we are of the opinion that prima-facie there seems to be some discrepancy, on the basis of which AO has reopened the assessment. Be that as it may, as we are satisfied that there is no unaccounted income to be brought to tax u/s. 68 of the Act, the issue of reopening becomes academic. - Decided in favour of assessee.
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2017 (5) TMI 1318
Addition on account of the undisclosed income - Held that:- There is nothing on record to contradict the findings of the ld. CIT(A) and ITAT that no cash for ₹ 7,33,50,000/- or a lesser amount found at any of the premises of Sh. Vineet Beriwala or Sh. SS Beriwala, nor any details of any investment/ expenditure having been made out of this supposed amount of ₹ 7,33,50,000/- were found in search on Sh.Vineet Beriwala or Sh. SS Beriwala. Thus there being no corroborative evidence found in search or post search investigation to substantiate the fact that the appellant has made unaccounted cash payment for ₹ 7,33,50,000/- to Sh. Vineet Beriwala or Sh. SS Beriwala during the year, the assumption of payment of cash derived from alleged paper seized cannot be supported. Therefore, ld. CIT(A) has rightly deleted the addition. The ld. CIT(A) has also recorded the findings on legal aspect of the case also, inasmuch as the alleged paper was not found from the possession of assessee and there was no corroborating evidence to show that the said papers seized from third party belong to the assessee. He has also relied on several decisions of Hon'ble Higher courts. The Revenue has not brought any material on record contrary to the findings reached by the ld. CIT(A) - Decided against revenue
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2017 (5) TMI 1317
Monetary limit for filing appeal - audit objection existence - Held that:- It is plain that the Revenue's audit objection is for each AY and not for the Assessee in general. In the present instance, while there is an audit objection for AYs 2008-09, 2009-10 and 2010-11, there is no audit objection for the AY in question i.e., AY 2007-08. Therefore, the Revenue cannot take advantage of para 8(c) of the said Circular to justify the filing of the present appeal.
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2017 (5) TMI 1316
Deduction u/s 80HHC to the assessee on counter sales made to foreign tourists - Held that:- There is no dispute between the parties that the transactions of counter sales effected by the respondent involved customs clearance within the meaning of Explanation (aa) to Section 80HHC(4A) of the Act and further that the sales were in convertible foreign exchange. In these circumstances, we are of the view that the Revenue having accepted and consistently followed the position of law settled by Ram Babu's case [1996 (5) TMI 61 - ALLAHABAD High Court], particularly in the case of the assessee itself, there is no merit in this appeal.
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2017 (5) TMI 1315
Expenses incurred on dismantling, transportation and re-erection and commissioning of the manufacturing units to another location - revenue v/s capital expenditure - Held that:- Before us the Revenue has made no grievance of the finding of fact arrived at by the CIT(A) and the Tribunal that the shifting of the plant from Kolhapur to Ankleshwar was on account of agitation of villagers at Chipri, Kolhapur. Thus the shifting of the plant was only for the purpose of manufacturing activity continuing to exist and carrying on its business.
The grievance to the finding of fact (concurrent) by the CIT (A) and the Tribunal is being urged by seeking to establish new facts before us, when the same was not even a suggestion made before the Authorities cannot be entertained. In fact except the above, no submission has been urged to indicate why the allowing of expenditure for shifting of the plant as revenue expenditure in the present facts is not sustainable. We find that the view taken by the Tribunal in the present facts is a possible view. Therefore no substantial question of law - Decided against revenue
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2017 (5) TMI 1314
Revision u/s 263 - Held that:- CIT exercising his powers vested u/s 263 set aside the order of the AO passed u/s 143(3) on the ground that the AO has not made any enquiry nor called for any details in respect of bank deposits and also in respect of payments which exceeded ₹ 20,000/- and simply accepted the return filed by the assessee. We also find that the CIT has correctly set aside the order of the AO and directed to redo the assessment as the AO has not made any enquiry and no details were called for, but, simply accepted the return filed by the assessee. When the Bench has specially pointed out to the ld. AR of the assessee that any questionnaire issued or any details were called for by the AO during the course of assessment, the AR submitted that no such questionnaire and details were called for by the AO. Therefore, we are inclined to accept the action of the CIT in exercising his power u/s 263 in setting aside the order of the AO passed u/s 143(3) and directed to redo the assessment. Accordingly, we uphold the order of the CIT and dismiss the grounds raised by the assessee.
Addition u/s 40A - AO made addition as the assessee has made the payments by way of cash exceeding ₹ 20,000/- - Held that:- Before the CIT(A), the assessee in his written submissions stated that he has incurred diesel expenses of ₹ 12,71,116/- during the year under consideration and not ₹ 3,17,.825/- as stated by the AO. The CIT(A) without examining the record, deleted the addition. We find that in the paper book at pages 49 to 53, as pointed out by the ld. DR, there are certain payments, which exceeded ₹ 20,000/-. However, the amount mentioned by the AO and the amount mentioned by the ld. DR are not matching and there is a difference in the total amount. Thus, we set aside the order passed by the CIT(A) and remit the matter back to the file of the AO with a direction to examine the ledger account of the assessee and, if, he found any violation by the assessee in making the cash payments exceeding ₹ 20,000/-, invoke the provisions of section 40A(3) and decide the issue in accordance with law.
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