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Showing 61 to 80 of 497 Records
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2005 (6) TMI 516 - CESTAT, NEW DELHI
Appeal - Restoration of ... ... ... ... ..... submits that, the amount has not been worked out by the Department. In any event, it was payable and if the applicant wants restoration on the ground of payment of the entire amount payable under the impugned order, the request for restoration can be considered only on the making of such pre-deposit. Furthermore, the matter is sub judice with the Hon rsquo ble High Court since the order dismissing the appeal has already been challenged in the Writ Petition by the applicant, as stated by the learned counsel. In view of these circumstances, the learned counsel for the applicant seeks permission to withdraw this application with liberty to move the Tribunal again after the outcome of the Petition filed in the Hon rsquo ble High Court. The application stands withdrawn accordingly, with liberty to move the Tribunal again as may be warranted by the decision of the Hon rsquo ble High Court. The application stands disposed off accordingly. (Dictated and pronounced in the open Court)
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2005 (6) TMI 515 - CESTAT, MUMBAI
Cenvat/Modvat - Short receipt of inputs from job worker waste ... ... ... ... ..... t the goods have been cleared clandestinely. 3. emsp After hearing Shri N.V.B. Nair, ld. DR, I find that the department has not brought on record any evidence to show that the burning loss at the job worker end was less than 10 . Tribunal in the case of West Metals Caps Ltd. v. CC. Ahmedabad reported in 2004 (170) E.L.T. 451 (T) 2004 (64) R.L.T. 831 (CESTAT-Mum) has held that mere claim of higher burning loss does not lead to inevitable conclusion of clandestine removal. The circular No. 267/136/87-CX.8, dated 15-1-1988 issued by the Board is also to the effect that credit of duty on inputs cannot be denied on the ground that part of the inputs is contained in the waste and scrap. Inasmuch as there is no other evidence to show that the appellant has dealt with the inputs in a manner other than permissible under the law, I find no justifiable reason to uphold the impugned order. The same is accordingly set aside and appeal is allowed with consequential relief to the appellant.
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2005 (6) TMI 514 - CESTAT, MUMBAI
Demand - Show cause notice ... ... ... ... ..... e assessee that they do not have machines for undertaking tow to top process and that such blended slivers that come into existence are not tops in that sense. ldquo Would induce us to conclude that duty demand on lsquo tops rsquo cannot be determined when it is found assessee has no machinery to manufacture lsquo tops rsquo as alleged in the notice. 2. emsp The ld. DR valiantly tried to justify the order. We find that if lsquo Slivers rsquo are not lsquo tops rsquo as held by the ld. Commissioner tops could not be manufactured then demand on Slivers by calling them lsquo tops rsquo in the notice can not be upheld. If the goods are lsquo tops rsquo on which demands made then the demands ab initio is void since no lsquo tops rsquo came or come in existence as verified and found by the Commissioner. Therefore, either way, following 2004 (174) E.L.T. 242 or otherwise, the duty demands and the order cannot be upheld and are set aside. 3. emsp Consequently the appeals are allowed.
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2005 (6) TMI 513 - CESTAT, MUMBAI
... ...
... ... ..... under the proviso to Rule 6b (i). The rules, even between sub-rules are to be applied seriatim and without ruling out the previous rule the subsequent rule cannot be invoked. The appellants have force in the submission that normal profit would be as per the trade practice reckoned from the minimum prices, to different class of buyers, if available nearest to the removal being worked out. This case that has to be reckoned and applied. (b) Consequently the appeals are to be allowed as Remand to the original authority to reconsider the application of the proviso clause of Rule 6b(i) and apply the same as above and move over to Rule 6b(ii) only when no such nearest price is available. After reworking out the assessable value the issue of Mandatory penalty under Section 11AC and the fact of discharge of duty has to be ascertained and law as per the Tribunal Larger Bench and Supreme Court decisions be applied. 3. emsp Appeals allowed as Remand in above terms. (Pronounced in Court)
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2005 (6) TMI 512 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... availments of credit based on possession and use by the appellant of the machine in question in the subsequent year, applies only with the respect to 50 of the balance credit. Since the appellant has claimed only first 50 credit as per the aforesaid rules, the Adjudicating Authorities have wrongly rejected the credit amount. I fully agree with the ld. Consultant. The appeal is, therefore, allowed. (Pronounced in Court)
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2005 (6) TMI 511 - CESTAT, MUMBAI
... ...
... ... ..... Mutual Industries Ltd. v. CCE, 2000 (117) E.L.T. 578 (LB). The amortized costs are to be added. If the Revenue is contesting the amortization arrived at by the assessee, they could have got the same determined under the provisions of Section 14A of the Central Excise Act, 1944 by deputing their Cost Accountant instead of resorting to the loading of full value of sale. We cannot uphold such loading. 3. emsp Both sides agree that Cost Accounts/Auditors services could be availed in this case and matter could be redetermined. We agree. The department should depute their own Cost Auditor to get the needful done since the assessee is a small scale unit and has pleaded the high costs of getting Cost Audits done on their own. After obtaining the report of the Assistant Director (Costs) of the Department, a copy of thereof be supplied to the assessee and values and duties be redetermined after hearing the assessee. 4. emsp Appeal allowed as remand in above terms. (Pronounced in Court)
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2005 (6) TMI 510 - CESTAT, KOLKATA
Penalty - Cenvat/Modvat ... ... ... ... ..... lowed by the Department. The Department has also issued a Circular No. 637-28-2002-CX dated 8-5-2002. It is clear from the above facts that the provision was required interpretation and for such interpretation, the appellants cannot be held responsible for availing the CENVAT credit on the practice prevalent at that time. When the interpretation of status/rules/circular is involved, the imposition of penalty is not desirable as held in the cases of M/s. Ambuja Cement Eastern Ltd. v Commr. of Central Excise, Raipur bearing Order No. A-921/Kol/2004 dated 23-12-2004 and Mangalam Cement Ltd. v. Commissioner of Central Excise, Jaipur reported in 2004 (163) E.L.T. 177 (Tri.-Del.). The appellants rsquo case is squarely covered by the above two decisions. 5. emsp In view of the above discussions, I partially allow the appeal and set aside the penalty imposed on the appellants. 6. emsp But for the above modification, the appeal is otherwise rejected. (Pronounced in Court on 30-6-2005)
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2005 (6) TMI 509 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Pre-deposit ... ... ... ... ..... um of Rs. 10,000/- on or before 28-10-02 although penalty of Rs. 1,00,000/- was imposed on him by the Adjudicating Authority. He has neither sought any extension nor taken any step to deposit the amount. Therefore, the appeal was rejected vide Final Order No. A/20/2003-NB(D) dated 7-1-2003. Even thereafter, he has not taken any reasonable step for depositing the amount. The amount of Rs. 10,000/- was deposited only on 9-12-2004 much after dismissal of appeal. We find that after dismissal of their appeal on 7-1-2003 the applicant has not made any prompt attempt to pre-deposit the amount or apply for restoration. This shows that the applicant was totally negligent and careless. The application for restoration of appeal was filed on 28-12-2004 which is unreasonably late and no valid reason for late filing is given. Therefore, we do not find any reason to restore the appeal. We, accordingly, reject the application for restoration of appeal. (Pronounced and dictated in open Court)
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2005 (6) TMI 508 - CESTAT, CHENNAI
Appeal - Limitation - Production capacity based duty ... ... ... ... ..... uty confirmed therein was based on the above ACP. In the circumstances, it is submitted by ld. Counsel, the assessee would be put to gross injustice if the captioned appeal is dismissed as time-barred. We are inclined to accept this submission of the Counsel. In the totality of the circumstances, we condone the delay of the captioned appeal. 3. emsp In view of the submissions made by ld. Counsel with regard to the demand of duty, we must also grant waiver of pre-deposit and stay of recovery in this case. Further, we must also remit the case to ld. Commissioner for de novo adjudication after re-determination of the ACP of the appellant rsquo s Mill. 4. emsp Accordingly we allow both the applications and also allow the appeal by way of remand after setting aside the impugned order. Ld. Commissioner is directed to re-adjudicate the case after re-determination of the ACP, after giving the party a reasonable opportunity of being heard. (Order dictated and pronounced in open Court)
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2005 (6) TMI 507 - ITAT DELHI
Income escaping assessment ... ... ... ... ..... ice is clearly illegal and such illegality cannot be waived by the assessee. Hence, respectfully following the ratio laid down in this decision (supra) by the Hon rsquo ble Bombay High Court as the notice issued under section 143(2) by the Assessing Officer is invalid so assumption of jurisdiction by the Assessing Officer in completing the assessment under section 143(3) read with section 147 is also improver and so the assessee cannot be debarred from raising this legal issue before the Tribunal merely because a particular amount was surrendered by the representative of the assessee before the Assessing Officer and the same is also under challenge before the Tribunal. Hence, I find no force in the contention of the learned Departmental Representative for the Revenue and accordingly the same is rejected. For the reasons stated above, the order of the CIT (Appeals) in sustaining the impugned addition is set aside. 8. In the result, the appeal filed by the assessee, is allowed.
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2005 (6) TMI 506 - ITAT AHMEDABAD
Income escaping assessment ... ... ... ... ..... sessment the debit balance of Nimit Mercantile Ltd. was evident. Borrowing of money from Mardia Chemicals Ltd. and payment of interest to them was also disclosed during the course of original assessment. The revenue could not point out which material fact was not disclosed by the assessee which led to escapement of income. In the above circumstances, in our opinion, the reopening of assessment was in violation of the proviso to section 147. Accordingly we quash the reopening of assessment under section 147. Consequently the assessment order passed after the reopening of assessment is also quashed restoring the original assessment order under section 143(3) dated 4-2-1999. 9. Since the reassessment itself has been quashed, the revenue rsquo s appeal which is in support of the addition made in the re-assessment has become infructuous. Accordingly the same is rejected. 10. In the result, the assessee rsquo s cross objection is allowed and the revenue rsquo s appeal is dismissed.
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2005 (6) TMI 505 - ITAT MUMBAI
Income from other sources ... ... ... ... ..... T v. Milton Plastics. IT Appeal No. 2004 (Mum.) of 1998 for the assessment year 1992-93. (ii)Order dated 11-11-2003 passed by Mumbai Bench lsquo I rsquo of the Tribunal in Asstt. CIT v. Rising Star Plastics (P.) Ltd. IT Appeal No. 5693 (Mum.) of 1998 for the assessment year 1992-93. (iii)Order dated 27th December, 2002 in Asstt. CIT v. Steadfast Holdings (P.) Ltd. IT Appeal No. 4453 (Mum.) of 1998 for the assessment year 1991-92. 36. We have perused the order of the learned CIT(A) and also considered the decisions relied upon by the learned counsel for the assessee. He has dealt with his issue in para 3.1 to para 3.5 of his order. In our view the learned CIT(A) has correctly appreciated the factual and legal aspects of the case. No infirmity in his order has been brought to our notice requiring our interference with his decision. His order is, therefore, confirmed. Appeal filed by the department is dismissed. 37. In view of the foregoing, both the cross-appeals are dismissed.
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2005 (6) TMI 504 - ITAT CHENNAI
Salaries - Perquisites, Assessment, Income escaping assessment ... ... ... ... ..... 143(1) does not exclude the power of the Assessing Officer to reopen the assessment under section 147 if the ingredients of section 147 are satisfied. It is open to the Assessing Officer to invoke the jurisdiction under section 147, notwithstanding the fact that there are other remedies open to him under the Act. It cannot, therefore, be accepted that the reassessment under section 147 is vitiated because the Assessing Officer failed to invoke his power to correct the assessment already completed under section 143(1) by issuing a notice under section 143(2) of the Act. 21. Following the above decision, we hold that assessment has been correctly reopened by the Assessing Officer. Interest under sections 234B and 234C 22. After hearing both the parties, we find that imposition of interest under sections 234B and 234C is of consequential nature and the Assessing Officer is directed to impose the same as per provisions of law. 23. In the result, the cross-objections are rejected.
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2005 (6) TMI 503 - ITAT COCHIN
Block assessment in search cases, ... ... ... ... ..... both sides and considering the facts and circumstances of the case, we find that the Tribunal in the aforesaid decision has held that the Assessing Officer had to exclude from the total undisclosed income of the block period, the incomes of those years which were found to be below the taxable limit. Further, the decision of the Patna High Court in the case of CIT v. Smt. Lily Tobias 2004 266 ITR 401 also supports the case of the assessee. In that case, it was held as under The amendment made in a section 158BC of the Income-tax Act, 1961, with effect from July 1, 1995, clearly provides that if the income of the particular assessment year falling within the block period is not taxable the same shall not be treated to be undisclosed income. Respectfully following the above decision of the Patna High Court and the decision of the Tribunal (Cochin Bench), we are inclined to allow this additional ground of the assessee. 39. In the result, assessee rsquo s appeal is partly allowed.
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2005 (6) TMI 502 - ITAT DELHI
Business expenditure ... ... ... ... ..... he assessee. On the other hand, it also cannot be said that on account of the advertisement given by the assessee on the website, the increase in the business of the assessee was not affected or that the business of the assessee has not derived any benefit at all from the advertisement. Considering all the facts, I am of the opinion that the tax authorities below were not justified in disallowing the entire expenditure claimed by the assessee in this regard. However, keeping in view the facts and circumstances of the instant case, in my opinion, it would be fair and reasonable to allow deduction to the extent of Rs. 1,00,000 to the assessee against the claim of Rs. 2,51,725 made by the assessee. 9. In view of the finding given here in above by me, the impugned order of the Commissioner of Income-tax (Appeals) stands modified to this extent and the ground of appeal taken by the assessee, is partly allowed. 10. In the result, the appeal filed by the assessee, is partly allowed.
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2005 (6) TMI 501 - ITAT JAIPUR
Charitable or religious trust ... ... ... ... ..... section 11(1). In addition, under section 11(1)(a), the assessee can accumulate 25 per cent of its total income pertaining to the relevant assessment year and claim exemption in respect thereof. Section 11(1)(a) does not require investment of this limited accumulation in Government securities. The balance income of Rs. 1,64,210.03 constitutes less than 25 per cent of the income of the assessment year 1970-71. Therefore, the assessee is entitled to accumulate this income and claim exemption from income tax under section 11(1)(a). 6. In our view, the matter has to be decided by the Assessing Officer in light of the decisions of the Hon rsquo ble Supreme Court in the case of S.RM.M.CT.M. Tiruppani Trust (supra). Therefore, the matter is restored to the file of the Assessing Officer to compute the taxable income as per direction given above by providing reasonable opportunity to the assessee. 7. In the result, the appeal of the assessee is partly allowed for statistical purposes.
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2005 (6) TMI 500 - ITAT CHENNAI
Assessment, Assets belonging to assessee ... ... ... ... ..... Circular is very clear in saying that the assessee is not entitled to carry on any new Branch outside the local limits of the District in which its Registered Office is situated. Thus, the property at Porur is an urban land. Once it is classified as urban land, there is no question of treating this property as business asset. Accordingly, this claim of the assessee is also rejected. 11. The only common issue agitated by the Revenue in all its appeals for the above assessment years is that the CWT (Appeals) has erred in holding that there was liability in terms of section 2(m) of the W.T Act, 1957, and that the same should be allowed for all the above assessment years involved. Since we have reversed the above view taken by the CWT (Appeals) on this issue and decided the same in favour of the Revenue, the ground taken by the Revenue stands allowed. 12. In the result, the appeals and the C.O. filed by the assessee are dismissed and the appeals filed by the Revenue are allowed.
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2005 (6) TMI 499 - ITAT DELHI
Method of accounting ... ... ... ... ..... ck at the end of the year for one and a half month, the tax authorities below were justified in taking the closing stock value at Rs. 1,75,000. On the other hand, the ld. authorised representative for the assessee, submitted that the unused stock value taken for one and a half months is on a higher side and it should be taken for the last 15 days only. 25. Considering the arguments of both the parties, I am of the opinion that it would be fair and reasonable to take the value of the unused stock available with the assessee in the last one month of the year under consideration only as the closing stock of the assessee and the same is valued at Rs. 1,25,000, which is equivalent to the purchases made in the last month of the year under consideration. Accordingly, the order of the Commissioner of Income-tax (Appeals) is modified to this extent and the ground of appeal taken by the assessee is allowed in part. 26. In the result, the appeal filed by the assessee, is partly allowed.
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2005 (6) TMI 498 - CESTAT, MUMBAI
Refund - Unjust enrichment ... ... ... ... ..... ffers and not passing on the incidence in some or the other way to their buyers. If the dispute were to go against them all the deposits made would have been taken away by the Government towards duty. In any case the Department could establish that the burden of duty has been passed on in this case. The amount involved has been rightly credited to Consumer Welfare Fund while holding that the refund is admissible. 18. emsp Before parting with this appeal we may point out that there was a time when manufacturers freely obtained refunds even after collecting the duty from their buyers. All that charged w.e.f. 1991. But attempts to obtain refund have not stopped. ldquo The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect duty from both ends..............The power of the court is not meant to be exercised for unjustly enriching a person rdquo Para 108 Mafatlal Industries Supreme Court. 19. emsp The appeal is rejected. (Dictated in Court)
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2005 (6) TMI 497 - CESTAT, MUMBAI
... ...
... ... ..... nd to wholesalers is not controverted by the Revenue. When both types of sales take place the Department should arrive at the assessable value after giving suitable allowances to the retail prices. Since the basis of assessment under Section 4(1)(a) is the wholesale price and not the retail price, the burden is on the Departments, as has been pointed out by Commissioner (Appeals), to determine the assessable value of goods sold to actual users in retail. The department has not done that exercise. It has simply compared the retail price with the wholesale price and came to the conclusion that the difference between the two prices constituted extra consideration. The Commissioner (Appeals) has rightly held that the department failed to adduce any evidence to prove that the respondent has been clearing goods to wholesalers in the garb of retail sales to customers but charging something over and above the invoice value. The Revenue rsquo s appeal has no merit. (Dictated in Court)
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