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Showing 81 to 100 of 497 Records
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2005 (6) TMI 496 - CESTAT, KOLKATA
Refund - Unjust enrichment ... ... ... ... ..... tected before submission of the return. There is nothing on record to ensure that the duty incident by that time was not passed on to the ultimate consumer as it is evident from the relevant invoices and the credit note issued subsequently by the appellant. The bar of lsquo unjust enrichment rsquo is applicable even if credit note representing the Excise Duty amount has been issued to the appellant subsequent to the clearance. In the case of Grasim Industries Ltd. (Chemical Division) v. CCE, Bhopal - 2003 (153) E.L.T. 694 2003 (55) RLT 397 (CEGAT-LB) the Larger Bench of CEGAT has held that ldquo Refund - Unjust enrichment - Section 11B of CEA, 1944 - Bar of unjust enrichment is applicable even if credit note representing the excise duty amount has been issued to the buyer subsequent to clearance - Appeal dismissed. rdquo In view of above, the appeal filed by the Revenue deserves to be allowed. Consequently, I set aside the impugned order and allow the appeal filed by Revenue.
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2005 (6) TMI 495 - CESTAT, MUMBAI
Demand - Clandestine removal - Accountal of goods - Demand - Clandestine removal - Accountal of goods
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2005 (6) TMI 494 - CESTAT, MUMBAI
Demand and penalty - Taxi Registration Refund ... ... ... ... ..... f clearance of the vehicle, keeping in mind that, if there were no liability to ldquo return rdquo the excess amounts to any other person, then the buyer of the manufacturer, then there can be no penalty on such persons or others, for having produced or not produced photocopies of the cheques which are encashed or not encashed. Material not relevant or and required for establishing a claim under the Central Excise Law cannot be a reason for calling for penalty even if such material is found to be indicating taunt on subsequent enquiries. The persons who got/or did not get the return of amounts have a recourse to law to enforce their rights, it cannot be cause for penalty under the Central Excise Act. 2.5 emsp In view of the findings, the orders are set aside and appeals allowed for de novo adjudication by determining the demands/recovery of erroneous refunds as per findings herein above. 3.1 emsp All appeals allowed as Remand in above terms. (Pronounced in Court on 17-6-2005)
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2005 (6) TMI 493 - CESTAT, NEW DELHI
Confiscation and Penalty - Show Cause Notice - Departmental clarification - Applicability of ... ... ... ... ..... the parameters laid down under the Prevention of Food Adulteration, therefore, it is not liable for clearance as per Board rsquo s circular dated 25-10-2001. 8. emsp I find that Board rsquo s circular was issued on 25-10-2001 whereas the goods were provisionally released in March, 2000 and if the revenue was of the opinion that the goods are not with in conformity with the provisions of Prevention of Food Adulteration Rules, the goods should have been confiscated and goods should not be released on provisional basis to the appellant. There is no SCN issued by the adjudicating authority and in absence of any SCN for confiscation or for imposition of penalty, the adjudication order whereby it was directed them the appellants to bring back the goods which were originally released and by relying upon the circular dated 1-11-2001 whereas the goods were imported in the month of March, 2000 is not sustainable hence set aside. The appeal is allowed. (Order dictated in the open Court)
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2005 (6) TMI 492 - CESTAT, MUMBAI
Sugar - Levy sugar - Excess clearance at the free sale rates ... ... ... ... ..... Government of India is continuously adjusting short/excess dispatch of levy sugar in subsequent seasons and excess dispatch in one particular season gets neutralized in subsequent years by higher sale of free sugar. In this view of the matter and considering that the removal of this 1,77,028 qtls was pursuant to Directions/Orders of Ministry of Food etc. New Delhi for supply through Public Distribution System as per Government Policy, classification prime facie cannot be effected out of 171039 and be made under 171031 by the assessing officers. Since the Commissioner did not have the benefit of this clarification, it is necessary that the order is set aside and the matter readjudication after considering this clarification and other decisions the assessed opts to cite and rely on classification and also another issues in this appeal. 3. emsp Appeal allowed as remand to Commissioner after setting aside the order for de novo decision all issues kept open. (Pronounced in Court)
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2005 (6) TMI 491 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... ere disclosed by them in their bail application before the Court where they were produced after the arrest. 4. emsp The initial burden was on the Revenue to prove the recovery of gold bars from the appellants. But no tangible evidence has been adduced by them to discharge the same. The appellants had never claimed the gold bars. There is also no evidence on the record to prove the allegations of the Revenue that Indian currency of Rs. 10,000/- recovered from Kanhaiya Lal, appellant, was the sale proceeds of the smuggled sarees, of foreign origin. No imported sarees were recovered from his residence. 5. emsp In view of the discussion made above, the impugned order imposing penalties on the appellants and ordering confiscation of their scooters and Indian currency, cannot be sustained, and the same is, therefore, set aside against all the appellants. All the appeals of the appellants are allowed with consequential relief, as per law. (Dictated and pronounced in the open Court.)
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2005 (6) TMI 490 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... e new manufacturer if he has taken the liability of the Unit. In the present case, in the transferred deed, the possession has been taken without previous liability. The appellants subsequently gave one undertaking to the Supdt. of Central Excise whereby it is mentioned that they are liable to deal with all Rules of Central Excise matters prior to 31-12-2001. 7. emsp I find that the Unit was purchased by the appellants under the transfer deed dated 31-12-2001 and as per this deed, the appellants had taken the delivery and possession without any liability and appellants had not amended this deed of transfer. Therefore, subsequently undertaking given before the Superintendent of Central Excise will not help the appellants. In these circumstances, I find no infirmity in the impugned order, whereby the benefit of Cenvat credit was denied. However, taking into facts and circumstances of the case, the penalty imposed on the appellant is set aside otherwise, the appeal is dismissed.
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2005 (6) TMI 489 - CESTAT, BANGALORE
Valuation - Second-hand machinery ... ... ... ... ..... In the present case, the authorities have taken a local Chartered Engineer rsquo s certificate to enhance the value and the age of the goods. The appellants have produced foreign chartered engineer rsquo s certificate dated 12-7-04. On a clear examination of the goods he has opined that the age of the machinery is less than 10 years and has also given the market value at US 18,000. There is no reason to enhance the market value and to reject the chartered engineer rsquo s certificate produced by the assessee. The plea of the appellants is in terms of the Supreme Court judgment rendered in the case of Tolin Rubbers Pvt Ltd. (supra) and the Tribunals ruling rendered in the case of Ruby Mills Ltd., and Anish Kumar Spinning Mills (supra). In the light of these judgments, the impugned order is not sustainable. The same is set aside by allowing the appeal with consequential relief if any. (Operative portion of the order already pronounced in open Court on conclusion of the hearing)
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2005 (6) TMI 487 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... chinery, plant and accessories thereof and the Tribunal in the decision held that goods in question are not parts of plant, machinery and are not used in the manufacture of final product. 8. emsp In this case the respondents availed the credit during the month July-Aug., 98 and as per the definition of capital goods during this period, the specified goods used in the factory are entitled for the credit. The Revenue is not disputed that the tariff headings under which these goods are falling, are covered under the specified goods mentioned in the table as provided under Rule 57Q of Central Excise Act. The case law relates to the previous period when the definition of capital goods was different and the goods such as plant, machinery etc. which are used in or in relation to the manufacture of final product are eligible for the benefit of capital goods. In these circumstances, I find no infirmity in the impugned order. The appeal is dismissed. (Order dictated in the open Court).
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2005 (6) TMI 486 - ITAT MUMBAI
Depreciation, Business expenditure ... ... ... ... ..... uch assets should be depreciated in the normal way after commencement of production. Finally, so long as the charging of depreciation in pre-operative period and bringing it back by capitalisation does not increase the actual cost, there cannot be any objection to this accounting. Even otherwise, actual cost of assisting asset installed in pre-operative period are eligible for claim of depreciation in post-operative period. In view of the above, we hold that the assessee is entitled to depreciation as per rules on the capitalized value of pre-operative expenses including depreciation charged on the assets used in pre-operative period. 23. Ground No. 11 requires no interference as the penalty proceedings are independently initiated and adjudicated. They are to be decided as per facts and law related to them. Hence this ground is rejected. Ground No. 12 is general and hence, it is also rejected. 24. In the result, the appeal of the assessee is partly allowed as indicated above.
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2005 (6) TMI 485 - ITAT MUMBAI
Business disallowance ... ... ... ... ..... ss, duty or tax is passed in trading account or in the books of account has to be outrightly rejected. 11. The next argument of the revenue has been that there should be matching of revenue and expenses. It has been already explained above that how the accounting entries are done to match credit and debit which will not make any difference to the net results as the entries on both sides of trading and Profit and Loss Account will neutralise each other. This argument of the revenue has also to be rejected. 12. Further, the assessee has added back the debit of excise duty to the total income in the final computation of income for the assessment year 1996-97 so as to avoid claim of double deduction. The claim of Rs. 3,03,080 has been made only in assessment year 1995-96 on the basis of proviso to section 43B. In view of the above, we find no merit in the appeal of the revenue. Accordingly, we uphold the order of CIT (A). 13. In the result, the appeal of the revenue is dismissed.
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2005 (6) TMI 484 - ITAT MUMBAI
Income - Deemed to accrue or arise in India ... ... ... ... ..... obilisation higher resources at an appropriate cost. The assessee has also pleaded that if payment made by it to S and P is considered as fees for technical services as per Explanation 2 to section 9(1)(vii) of the Income-tax Act, 1961, even then it would not be taxable in India as it would fall outside the purview of section 9 of the Act. We find no merit in this contention of the assessee as the payment has been made in respect of business carried on in India and is squarely falls within the ambit of section 9(1)(vii)( b) of the Act. Accordingly in the instant case, the annual surveillance fee falls within the category of ancillary services under sub-paragraph (d) provided in connection with the supply of commercial information under sub-paragraph (c) of paragraph (3) of the Article 12 of DTAA and accordingly, the assessee-company is liable to deduct the tax under section 195 of the Act. We order accordingly. 15. In the result, the appeal filed by the assessee is dismissed.
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2005 (6) TMI 483 - ITAT DELHI
Interest on borrowed capital ... ... ... ... ..... (SC) Swadeshi Cotton Mills Co. Ltd. v. CIT 1967 63 ITR 57 (SC) Lakshmiratan Cotton Mills Co. Ltd. v. CIT 1969 73 ITR 634 (SC) CIT v. Ballarpur Industries Ltd. 1979 119 ITR 817 (Bom.) and CIT v. Imperial Chemical Industries (India) (P.) Ltd. 1969 74 ITR 17 (SC). In the absence of any specific material, it is not possible to hold that the assessee had been maintaining huge cash in his almirah for the purpose of his business only. The assessee might have intended to utilize this cash if it was indeed there for any other purpose. As the assessee failed to establish any nexus between the cash borrowings and business purpose, the ld. Assessing Officer rightly disallowed the assessee rsquo s claim of deduction and the ld. CIT(A) erred in allowing the deduction merely on the basis of some general observations. I, therefore, set aside the order of the ld. CIT(A) and restore the disallowance as made in the assessment order. 6. In the result, this appeal filed by the revenue is allowed.
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2005 (6) TMI 482 - ITAT DELHI
Deductions - Royalty, etc., from certain foreign enterprises ... ... ... ... ..... e contentions of the assessee altogether. Before the ld. CIT(A), the assessee has enumerated at length the nature of services rendered outside India. In a way, the certificate now sought to be furnished supports the arguments of the assessee that has been accepted by the ld. CIT(A). Taking an overall view, I am of the view that it would not be worthwhile to restore the matter to Income-tax authorities once again. Assessment year involved is 1992-93. On the facts of the case, it is now clear that the assessee mainly rendered services in India though some part of it also related to the services rendered from India to its clients abroad. I, therefore, direct that only 20 per cent of the assessee rsquo s receipt in convertible foreign exchange may be treated as eligible to deduction under section 80-O as against 100 per cent accepted by the ld. CIT(A). Deduction under section 80-O may be worked out accordingly. 6. In the result, this appeal filed by the revenue is partly allowed.
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2005 (6) TMI 481 - ITAT MUMBAI
Actual cost ... ... ... ... ..... e share transfer of the previous year when the public issue was made or to subsequent transactions. The assessee has filed the details of share transfer expenses before us. The assessee has certified that similar details were filed before the Assessing Officer as well as before the CIT(A). It is categorically stated in the said statement that they pertained to the assessment year under consideration and that they were incurred for affecting transfer of shares after the public issue had been closed. Besides, the amount of share transfer expenses claimed by the assessee was Rs. 2,23,655 and not Rs. 2,63,655 as taken by the Assessing Officer and the CIT(A). Having considered the details filed by the assessee, we find nothing to support the order of Ld. CIT(A) that the said expenses did not pertain to the share transfer or to the year under consideration. In this view of the matter, issue No. 3 raised by the assessee is allowed. 19. Appeal filed by the assessee is partly allowed.
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2005 (6) TMI 480 - ITAT BANGALORE
Deductions u/s 80HHC and 80-IB - Profits from undertaking - exporter of garments - Interest receipt from other source - Order u/s 263 passed without any application of the provisions -payments in respect of instalments of employers’ and employees’ contribution to Provident Fund - HELD THAT:- It appears that the CIT has revised the assessment order u/s 263, on two points. Firstly there were late payments of PF dues which was found by the Assessing Officer while giving effect to section 263 order as not correct as payments were made in time. According to the CIT, the second point is that the assessee cannot be allowed deduction u/s 80HHC because he was allowed deduction u/s 80-IB of the Act. We have already noticed that so far as the allowability of the deduction u/s 80HHC is concerned which was the subject-matter of appeal before CIT (Appeals) and decided in favour of the assessee.
Therefore, in our considered opinion, CIT by exercising the power u/s 263, cannot withdraw the relief u/s 80HHC because theory of merger will apply which is supported by the decision of Full Bench of the jurisdictional High Court in the case of CIT v. Hindustan Aeronautics Ltd.[1985 (7) TMI 74 - KARNATAKA HIGH COURT] which was confirmed by the decision of Hon’ble Supreme Court in Hindustan Aeronautics Ltd. v. CIT [2000 (5) TMI 3 - SUPREME COURT].
Further, we find that the Commissioner was not justified to hold that once relief u/s 80-IB was allowed to the assessee, no further relief u/s 80HHC can be allowed, the provisions of section 80-IA(9)
We are of the view that the provisions of section 80-IA(9) only regulate the deductions allowable under Chapter VI-A and there is no restriction contained therein to regulate other deductions. The provisions of Chapter VI-A are meant to encourage various objects and these incentive provisions must be construed for the benefit of the taxpayer. Thus, we hold that since the assessee has not claimed more than 100 per cent deduction in respect of the profits of the undertaking and since the Assessing Officer has also not allowed more than 100 per cent deduction of the profits under both sections 80-IB and 80HHC, there is no need to interfere with the order of the Assessing Officer.
Therefore, the order of assessment passed u/s 143(3) cannot be said to be erroneous in so far as it is prejudicial to the interests of revenue.
In the result, the appeal is allowed.
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2005 (6) TMI 479 - ITAT MUMBAI
Non-residents, Income - Deemed to accrue or arise in India ... ... ... ... ..... The basis of earning of revenue in India, as far as the assessee is concerned was its business connection with Air India. Therefore, the Assessing Officer has rightly considered the entire payment made by Air India as the basis for computing taxable income of the assessee. 22. It is a fact that the assessee has not maintained or produced books of account or other particulars before the assessing authority. Therefore, once the assessee is found to be answerable to a regular assessment, it is the duty of the Assessing Officer to estimate the income of the assessee. The Assessing Officer has estimated the income at 29.7 per cent on the basis of the finding of the International Arbitration Tribunal which has got undisputable evidentiary value. Therefore, we cannot say that the estimate of income made by the assessing authority is in any way erroneous or arbitrary. 23. In the facts and circumstances of the case, these appeals filed by the assessee are dismissed. Order accordingly.
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2005 (6) TMI 478 - ITAT MUMBAI
Minimum alternate tax - sale of capital assets - exemption under the provisions of section 50 - HELD THAT:- In the present case, if the exemption allowed under section 50 of the Act is taken away while taxing, the book profits u/s 115JA, it will make the provision of section 50 of the Act as redundant. This interpretation is not justified. The ratio of Apollo Tyres [2002 (5) TMI 5 - SUPREME COURT] distinguishable because the same has been rendered in the context of provisions of section 115J which is independent code, while section 115JA is not an independent code and the Legislature in their wisdom has brought sub-section (4) of section 115JA on the statute to make section 115JA also a part of the Act.
Regarding relevance of the decision relied on by the revenue in the case of Indo Marine Agencies (Kerala) (P.) Ltd. v. Asstt. CIT [1994 (8) TMI 69 - ITAT COCHIN] and CIT v. Veekaylal Investment Co. (P.) Ltd. [2001 (2) TMI 117 - BOMBAY HIGH COURT]. These cases were rendered as per the provisions of section 115J which is self-contained code. As has been held in a number of cases, whereas section 115JA is not self-contained code. Sub-section (4) has been inserted first time and it has made section 115JA also a part of the Act. Therefore, exemptions allowed under one provision of the Act, cannot be taken away by another provision of the Act. In the above cases, there is a capital gain which was taxable u/s 45 of the Act. So, the Hon’ble Courts decided that once income u/s 45 is includible in the taxable income, why the same income should not be included in the book profits determined u/s 115JA of the Act. But in the present case, the capital gains earned by the assessee are exempt u/s 50 of the Act and they will not form part of the taxable income. Therefore, this exempted income should not be a part of the capital gains. Section 115JA only stipulates total income based on book profits, but does not enlarge the scope of the income. In other words, a receipt which is not in the nature of income cannot be taxed as income u/s 115JA.
Similar view has been taken by the Bombay Bench ‘B’ of the Tribunal in the case of Rolta India Ltd. v. Joint CIT [IT Appeal No. 20 (Mum.) of 2001], for the assessment year 1997-98, which has been authored by Hon’ble Accountant Member who is one of the Members of this constitution. Relying on the provisions of sub-section (4) of section 115JA, the Tribunal has observed that section 115J is distinguishable from the present section.
Thus, we are not inclined to interfere in the finding of the learned CIT(A). The same is upheld. As a result, the appeal of the revenue is partly allowed.
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2005 (6) TMI 477 - ITAT MUMBAI
... ...
... ... ..... ention of the Legislature was quite clear. Considering the entire facts and circumstances, we feel that the refined petroleum products manufactured by the assessee, namely, Naphtha, Diesel and Fuel oil are covered under the expression lsquo mineral oil rsquo for the purposes of section 80HHC. We, therefore, uphold the order of the ld. CIT(A) on this issue. 23. The ground No. 14, pertaining to disallowance of miscellaneous expenses, has been withdrawn by the ld. counsel for the assessee and, therefore, this ground stands rejected as withdrawn. 24. The ground No. 15, pertaining to disallowance of depreciation on lease-hold land, depreciation on right of way and ESA on right of way, has not been permitted by the COD and, therefore, this ground stands rejected as such. 25. The ground No. 16, pertaining to disallowance under section 40A(5), has not been permitted by the COD and, therefore, this ground stands rejected as such. 26. In the result, both the appeals are partly allowed.
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2005 (6) TMI 476 - ITAT MUMBAI
Interest payable by specified entities , Non-residents, Bad debts, Entertainment expenditure, Business expenditure,
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