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Showing 501 to 520 of 1389 Records
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2014 (7) TMI 890
Suspension of operation of Customs Broker License, under Regulation 19(1) of Customs Brokers Licensing Regulations, 2013 - Forfeiture of security - Earlier hearing of petition - Held that:- it would be suffice to direct the first respondent Tribunal to consider the application for stay at an early date and pass appropriate orders - Tribunal is directed to take up the application for stay first and pass appropriate orders - Decided in favour of assessee.
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2014 (7) TMI 889
Challenge to the clarification of the first respondent in Reference - powers to issue a circular or clarification under the TNVAT Act - Input tax credit - Capital goods - Held that:- The definition of capital goods only specifies that the goods which are used for the purpose of manufacture can be categorized as capital goods. The tax paid for the purchase of capital goods used in the case of manufacture is entitled to be claimed back as ITC - The petitioner herein is involved in the manufacturing of industrial boilers. Huge metals can only be carried by crane for manufacturing boilers. When the cranes are exclusively purchased by a dealer to be used for manufacturing activity, the same would definitely fall under the definition of capital goods. However, when the cranes purchased as rented out to others or used for any other purpose other than for manufacturing activity, the same cannot be treated as capital goods. Therefore, the classification of cranes would have to be dealt with on the facts of each case.
First respondent had no powers to issue any circular or clarification. Further section 48 A was introduced with effect from 27.09.2011. Any order by the State Level Authority for Clarification and Advance Ruling under Section 48 A can only be made regarding any clarification on rate of tax on an application by a dealer. Even there, the first respondent has no powers to individually or independently issue any clarification on rate of tax. It is also clear that the first respondent does not have any authority to issue circulars or clarifications on any other matters other than rate of tax. The first respondent cannot use the circulars or clarifications to overcome the provisions of the statute. Any interpretation which was not intended by the legislature also cannot be introduced by way of circulars or clarifications. Any change in the statute can be brought in only by way of amendment.
The levy of tax must be within the four corners of law and must not be based on surmises and conjunctures. Any act contrary to the provisions of the taxing statute would be hit by Article 265 of the Constitution of India. Therefore, the impugned circular issued without authority is set aside. The petitioner is directed to submit their objections within four weeks from the date of receipt of a copy of this order and the second respondent shall consider the objections and pass orders independently sticking on to the provisions of the Act - Decided in favour of assessee.
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2014 (7) TMI 888
Penalty - Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in treating the invoices produced by the appellant as “Retail Invoices” even though the nomenclature of a document cannot be conclusive to decide as to whether a invoice produced is a Retail Invoice or a Tax Invoice and even though admittedly, the invoice produced contained all the essential ingredients of a Tax Invoice including details of tax charged separately - Held that:- On persual of the statutory notice issued in Form No.309 and considering the same it appears that there is a reference to the penalty u/s 34(7) and u/s 12(7) of the Act only. However, there is no reference of penalty u/s 34(12) of the Act.
Thus, before imposing the penalty u/s 34(12) of the Act neither any statutory notice has been served upon the appellant nor the appellant has been called upon to show cause as to why the penalty u/s 34(12) of the Act may not be levied/imposed. Under the circumstances, the order passed by the First Adjudicating Authority, partly confirmed by the First Appellate Authority and confirmed by the Appellate Tribunal imposing the penalty u/s 34(12) of the Act cannot be sustained and the same deserves to be quashed and set aside as the same is in breach of principle of natural justice. Consequently, the order passed by the First Adjudicating Authority imposing penalty u/s 34(12) of the Act, partly confirmed by the First Appellate Authority and further confirmed by the Appellate Tribunal, is hereby quashed and set aside - Decided in favour of assessee.
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2014 (7) TMI 887
Restoring of re assessment order - Exercise of suo moto revisional authority - Held that:- effect of the order passed by the Commissioner in exercising of revisional jurisdiction has virtually left the assessee without remedy of first appeal, as the Commissioner after setting aside the order of the first appellate authority has left the matter at that stage without directing the first appellate authority to examine the merits of the appeal and to pass orders by himself and not by remanding the matter to the original authority. - As there is a statutory bar for the first appellate authority to remand the matter to the assessing authority, to that extent, the order passed by the first appellate authority has undoubtedly committed an error in law - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 886
Locus standi - Seizure of equipment - Violation of principle of natural justice - Hearing opportunity not given - petitioner claims to be the financier of an excavator which was purchased by the fourth respondent - Held that:- As far as the plea of the petitioner that orders are vitiated for the reason that the petitioner was not heard in the matter is concerned, I am of the view that in a proceedings under section 47(2) of the Act, the registered owner of the vehicle or the owner of the consignment in question alone are liable to be heard. If that be so, these orders do not call for interference on the ground that the petitioner has not been heard in the matter. - Decided against the petitioner.
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2014 (7) TMI 885
Eligibility for duty free procurement - Notification No.1/95 CE - Furnace Oil purchased and consumed by the appellant's unit (Food Processing Industry) - tribunal allowed the he benefit of duty free purchase - Held that:- a similar issue was answered against the Revenue by the Tribunal in Tata Tea Limited v. Commissioner of Central Excise, [2003 (12) TMI 109 - CESTAT, NEW DELHI], and the appeal preferred by the Department as against the said decision stood dismissed by the Supreme Court - decision of tribunal affirmed - Decided against the revenue.
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2014 (7) TMI 884
Condonation of delay - delay of 32 days - Tribunal dismissed the appeal - Held that:- the order -in- original was pasted on the premises of the appellant on 06.10.2010 under a Mahazar before two independent witnesses as required under Section 37C(b) of the Central Excise Act, 1944, since the appellant was not available in the premises and the premises was also locked. That is the effective date of service. However, the appellant construed as if the order was affixed only on 06.10.2011 and filed an appeal before the Commissioner (Appeals) along with a petition to condone the delay of 32 days. However, the Commissioner (Appeals) held that the date of service of summons was only 06.10.2010 and not 06.10.2011 and dismissed the appeal.
Commissioner (Appeals) cannot condone the delay beyond the stipulated period. - appeal dismissed - Decided against the assessee.
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2014 (7) TMI 883
Waiver of pre-deposit - SEZ unit - Clearance of goods to DTA units without following the prescribed procedure - duty was confirmed holding that the material, which was cleared are not books within the meaning of Customs Tariff Heading 49.01, and that it will fall under 49.11 and not exempt from duty - notification No.21/2002 - Held that:- there is a prima facie case in favour of the appellant that the goods are not liable to duty in terms of the exemption in Notification No.21/2002 Customs. The above fact, in the light of the Supreme Court decision in Gujarat Prestorp Electronics Ltd.'s case [2005 (8) TMI 657 - Supreme Court of India], was not considered by the Tribunal for deciding the prima facie case.
Undue hardship to such person and safeguard the interests of the Revenue - Held that:- It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, [1984 (1) TMI 63 - SUPREME Court] and CCE v. Dunlop India Ltd., [1984 (11) TMI 63 - SUPREME Court] cases without analysing factual scenario involved in a particular case.
For a hardship to be undue it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. - The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.
We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. - appellant is granted waiver of the entire amount ordered to be paid as pre-deposit by the Tribunal. - stay granted - decided in favor of assessee.
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2014 (7) TMI 882
Penalty u/s 11AC - whether mandatory - clandestine clearance of goods - Held that:- In view of the categorical statement of law by the Supreme Court in the above-stated decision Union of India V. Rajasthan Spinning and Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA], the question of exonerating the assessee from payment of penalty does not arise. - Decided in favor of revenue.
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2014 (7) TMI 881
Cenvat Credit - capital goods - structural steel items viz., M.S.Plates, Angles, Channels and HR Sheets used for civil construction activity - Held that:- This Court in the case of India Cements Limited [2011 (8) TMI 399 - MADRAS HIGH COURT] applied the principles laid down in the decision of Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] and held that the Tribunal was justified in allowing the assessee's contention in respect of the very same assessee. - credit allowed - decided in favor of assessee.
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2014 (7) TMI 880
Refund of duty paid by the supplier of goods - locus standi - claim of exemption for the return stream - claim of IPCL was rejected on the ground that buyer may be entitled to get the refund - the petitioner (GPL) being buyer of the gas has filed instead of filing refund claim filed an appeal before the tribunal against the order of Commissioner (appeals) passed against the supplier - tribunal rejected the claim of petitioner on the ground that the petitioner has no locus standi - Held that:- as such, the refund claims of the petitioner would be barred by the limitation provided under Section 11B(2) of the Act. If, the petitioner would have preferred independent applications for refund of the claim under Section 11B(2) of the Act in that case, the applications of the petitioner for refund of the claim would be required to be rejected on the ground of limitation.
Under the circumstances, no error has been committed by the learned Tribunal in dismissing the appeals preferred by the petitioner on the ground that the petitioner has no locus standi to prefer appeals against the order of the Commissioner( Appeals), rejecting the appeals preferred by the IPCL and confirming the order passed by the Asst. Collector, rejecting the refund claim applications of the IPCL. - Decided against the petitioner.
Whether the petitioner is aggrieved person - Held that:- as such, by the order passed by the Commissioner (Appeals) no liability would have been fastened upon the petitioner. - By the impugned order, if any, liability would have been fastened, then and then, the petitioner can be said to be a ‘person aggrieved'. Under the circumstance, the contention on behalf of the petitioner that the petitioner can be said to be a ‘person aggrieved', and therefore, his appeals ought to have been entertained by the Appellate Tribunal, deserves rejection. - Decided against the petitioner.
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2014 (7) TMI 879
Claim of interest on delayed refund - export of goods - the claim of the refund of the additional duty deposited by the petitioner was rejected by the Deputy Commissioner of Central Excise by its orders dated 28.11.2008 and 21.10.2008. The claim of the petitioner that it is entitled to rebate of CVD is no longer res integra and the said question has been decided in favour of the petitioner, albeit, after a considerable lapse of time. - Held that:- there has been an inordinate delay in allowing the rebate claims filed by the petitioner considering that the raw materials were imported almost eight years ago.
It is appropriate that interest at the rate of 8% be granted to the petitioner on the refund sanctioned by the authority from the expiry of three months from the date when the claim was first rejected by the concerned Authority. - petition allowed - Decided in favor of assessee.
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2014 (7) TMI 878
Extension of stay - third proviso to sub-section (2A) of Section 35C - power to extend the stay beyond the period that has been prescribed - Held that:- The appeal was listed before the Tribunal on diverse dates and it was the inability of the Bench of the Tribunal to dispose of the appeal which has led to the appeal remaining pending on the file. Hence, we are of the view that it would be a travesty of justice to saddle the petitioner with the consequence of the unconditional stay being vacated because of the inability of the Tribunal to dispose of the appeal. - stay extended - department not to pursue recovery proceedings - decided in favor of assessee.
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2014 (7) TMI 877
Suspension of the licence of the petitioner as custom broker - alleged that the petitioner firm has aided/abetted the importers in evasion of duty - Held that:- it is stated that for want of Judicial Member, the Appellate Tribunal is not functioning and therefore having regard to the urgency involved in this case, the petitioner has filed this writ petition. - petitioner shall prefer an appeal before the Appellate Authority as against the order dated 19.02.2014 passed by the first respondent, within a period of one month from the date of receipt of a copy of this order. - Till such time, the order dated 19.02.2014 shall remain stayed. - decided in favor of petitioner.
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2014 (7) TMI 876
Principle of consistency - Release of goods - 100% EOU - segregation of Ferrous and non-ferrous scrap, mix scrap, electrical motors, transformers, etc. - Foreign Trade Policy 2004-2009 in the meantime was amended and from the definition of 'manufacture', segregation activities came to be excluded. - However, it was specifically provided inter alia that those units set up prior to 1st April 2002 for a period of five years shall not be disturbed. - Held that:- The Tribunal once having held in favour of the assessee on both the issues and having said unequivocally that the unit set up prior to 1st April 2002 is to be treated differently and the activity of segregation of ferrous and non ferrous material shall need to be treated as manufacturing concern and the benefit of Notification No. 21/2002 available for clearance from EOU to DTA, surely resulted into the balance heavily tilting in favour of the petitioner, and therefore, without even waiting for any request on the part of the petitioner to release and return the goods attached by the respondents the same should have been released to give an effect to such order of the second appellate authority.
Failure of the department to release of goods despite the decision in favor of assessee - Held that:- For want of such release of attachment and return of the goods and machineries, the petitioner continuously has lamented alleged of having lost substantial business. It is for sure an arrogant way of putting it by way of an affidavit in reply by the respondent that due to expiry of LoP and the green card, return of such goods and machineries would have also served no purpose.
Denying any citizen of his due and particularly the articles of his own ownership after second appellate authority held in his favour, surely was an act which needs to be adjudged with a strong disapproval. The respondents therefore are expected to act promptly as ensured by the learned counsel for the Revenue.
Extension of LOP - Held that:- Thus, to direct the respondent to grant further LoP without petitioner debonding its unit and also without necessary inspection and scrutiny of the premises would prove to be against the requirements of law on the subject, and therefore, as far as the second ground raised in this petition, the petitioner's claim is not found sustainable. However, petitioner can choose to apply once again on fulfilling the required parameters and if so done, the same shall be considered in accordance with law by the respondents. - Decided partly in favor of assessee.
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2014 (7) TMI 875
Classification - import of Lighting fitting Compact Recessed Down light - classifiable under CTH 94051090 or under Tariff Heading 8539 - It is the observation of the ld. Adjudicating Authority that the laboratory reports proved the goods to be CFL, i.e., Compact Fluorescent Lamp by their character, nature and longevity - Appellant says that the goods being used for light reflection and focusing that proves the goods were spot lights but not mere lamps. - Held that:- appellant did not rebut such aspect of the finding of ld. Adjudicating Authority.
The classification under both the entries above show that the goods covered by them are illuminating lamp. The goods imported has the characteristic of spreading light to a defined area according to its beams and rays and the reflector used. The HSN classification speaks that searching lights are used for anti-aircraft operations and spot lights are used for stage sets and in photographic or film studios. Search lights and sport lights throw a concentrated beam of light (which can be regulated) over a distance onto a given point of surface by means of reflector and lenses or with reflector only. This is, precisely, the usage of the search light and spot light. But the goods imported by the appellant was not able to satisfy such usage except spreading its light as CFL.
Law is well settled in respect of classification. More specific tariff heading attracts goods akin to its entry but not an orphan to its fold compared to a non-specific tariff entry. - The CTH 85393110 covers Compact Fluorescent Lamp within its fold belonging to the family of electrical filament or discharge lamp including sealed beam lamp units and ultra-violet or infra-red lamps; arc-lamps. CTH 9405 describes its family as family of lamp and light fittings which covers search lights and spot lights. The goods imported neither being search light nor spot light, according to HSN notes those are covered by CTH 8539 but not by CTH 9405 since both entries are altogether different and neither dear nor near to each other in relation. - Decided against the assessee.
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2014 (7) TMI 874
Scheme of Amalgamation - The Petitioner Companies have placed on record communications from Unsecured Creditors to the effect that they shall be opposing the scheme. However, none of these Unsecured Creditors have appeared before this Court or filed objections to the Scheme before this Court. - Held that:- In view of the approval accorded by the shareholders of the Petitioner Companies, the Report filed by the Official Liquidator, Affidavit filed by the Regional Director and the Replies of the Petitioner Companies to the Reports of the Official Liquidator and the Regional Director, there appears to be no impediment to the grant of sanction to the Scheme. - sanction to the scheme granted.
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2014 (7) TMI 873
Agriculture income - Bogus capital formation through shares - Rule 7 of the Income Tax Rules, 1962 – Held that:- Following Commissioner of Income Tax-I, Chandigarh Versus Rana Gurjit Singh [2011 (2) TMI 241 - PUNJAB AND HARYANA HIGH COURT] - Calculation made by the AO while working out non-agricultural income in the hands of the assessee, addition/disallowance in the hands of the assessee on account of non-agricultural income is not justified, as the conversion of raw seeds into pea seeds cannot be held as non-agricultural merely on the ground that there was a complete change from raw seeds into pea seeds which was not justified that the assessee changed such raw seeds into pea seeds, observing that the same was a highly perishable item which would have resulted in prospective loss in absence of marketability for the same – Decided against Revenue.
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2014 (7) TMI 872
Deduction u/s 80I – Income from expansion of dispersion unit – Held that:- Unless the deduction is withdrawn or rejected in the initial assessment years, it cannot be withdrawn in the subsequent AYs – Following the decision in Commissioner Of Income-Tax Versus Paul Brothers [1992 (10) TMI 5 - BOMBAY High Court] - Tribunal merely applied the principle laid down in the decision and rightly concluded that the denial of deduction by the AO on the reason of legality cannot be sustained – thus, the Tribunal did not commit any error of law apparent on the face of the record – Decided against Revenue.
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2014 (7) TMI 871
Unexplained investment – Valuation of property – Held that:- The assessee did not cooperate would not absolve the AO from adopting some methodology in arriving at the market value which according to him had not been disclosed by the assessee - The task of the DVO in the circumstances became crucial, he could not have indulged an arm chair exercise by merely issuing notices to the assessee - there was no basis for the AO to determine that the true value of the property was ₹ 1.25 crores, by adopting the return on capital method - The AO was under a duty first to ascertain what was according to him the true cost of the property - error could not have been compounded by adopting a completely different methodology without any positive finding as to the cost of acquisition.
The addition made is purely based on estimate and conjecture and there is no substance in the estimate made by the AO, who in any case is not authorized to make any estimate under the provisions of section 142(2A) of the Income-tax Act - section 69/69B are deeming provisions and it is trite law that deeming provisions are to be strictly interpreted - AS there is no invoke section 69/69B therefore for this reason too the addition made is not sustainable in law – the AO is directed to delete the addition made for ₹ 74 lacs on account of unaccounted investment made by the assessee out of undisclosed sources of income – thus, no substantial question of law arises for consideration – Decided against Revenue.
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