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Case Laws
Showing 121 to 140 of 699 Records
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2004 (3) TMI 712 - ITAT DELHI
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... ... ..... As observed by us, the power of rectification under section 254(2) is limited and in exercise of such powers the Tribunal cannot review its earlier order. We are further of the view that there is no apparent or glaring mistake in the order of the learned Third Member and what the applicant wants is to review the order of the learned Third Member which course is not available. On the basis of the above, we reject all the pleas taken in the miscellaneous application. Learned counsel for the assessee has also made reference to the decision of hon ble Delhi High Court in the case of C. S. Mathur v. CBDT 1999 235 ITR 769, to justify his point on merits of the case. Since we are of the view that there is no mistake apparent on record in the order of the learned Third Member requiring any rectification, we are not required to consider the matter on the merits of the case as it would amount to review the order of the Tribunal. In the result, the miscellaneous application is rejected.
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2004 (3) TMI 711 - ITAT MUMBAI
... ...
... ... ..... rpose of computing Indian income tax liability, but it is the admissible foreign tax credit in respect of the same which affects such an Indian income tax liability. The FTD in respect of income tax paid in the US cannot exceed the Indian income tax liability in respect of the income on which income tax is paid in US. Unless one entirely ignores this restriction on deduction, as unambiguously placed in the last sentence of article 25(2)(a) itself, the interpretation approved by the Commissioner of Income-tax (Appeals) is not even a possible view of the matter. We cannot, therefore, approve the same. We hold that the Commissioner of Income-tax (Appeals) indeed erred in directing the Assessing Officer to grant the refund to the assessee by giving credit for the taxes paid in the USA. Accordingly, we vacate the order of the Commissioner of Income-tax (Appeals) on this issue and uphold the stand taken by the Assessing Officer. In the result, the Revenue rsquo s appeal is allowed.
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2004 (3) TMI 710 - CESTAT MUMBAI
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... ... ..... as Plastics who is engaged in manufacture of goods. Secondly, the fact that both the activities are being carried out in the same premises does not automatically mean that both are engaged in the manufacture of goods. If the activities are carried out from two different premises, the department could not have clubbed the turnover of the two firms. 7. I am surprised though as to why the department permitted trading activity of the same goods from the premises where manufacturing activity is carried out. If they have not permitted it and M/s. Paras Plastics allowed trading of plastic goods without the department rsquo s permission, action should have been taken against M/s. Paras Plastics on that count instead of trying to club their turnover with that of M/s. Suyog Corporation. Having failed to do so, the department cannot come round and allege that M/s. Paras Plastics suppressed their production. 8. The appeals are rejected. The order of the Commissioner (Appeals) is upheld.
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2004 (3) TMI 709 - KARNATAKA HIGH COURT
Whether any manufacture in tems of the notification is be carried on by the petitioner at Mangalore in the given circumstances. - held that:- The Homogenisation may be at best be a process but not a process which results in production or manufacture. Therefore the respondents are right in their submission that there is no manufacture at Mangalore. The finding of the committee of ‘no manufacture’ is based on facts and is supported by the decisions of both the Apex Court and this court. I do not find any factual or legal errors warranting by interference.
There is one more reason as to why the petitioner cannot be given the concession in this case. It can be forgotten that the State by offering concessions, is losing substantial revenue legally due to it. The said concession is granted in the light of the availability of employment and the fixed assets etc. in fact, in the case on had, annexure-E would show that no eligibility certificate as such is available to the petitioner on the facts of this case.
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2004 (3) TMI 708 - CESTAT, MUMBAI
Manufacture ... ... ... ... ..... it was held that this was a new commodity distinct from Jumbo Reels and the commodity was different from that dealt with by the Hon rsquo ble Madras High Court in the case of Computer Graphic Pvt. Ltd. The Tribunal upheld the duty demand on typewriter/Telex Ribbon printing spools. 4. emsp The ratio of the above decision is applicable on all fours to the facts of the present case and we also note that the adjudicating authority has recorded clear finding that after the process carried out by the appellants herein the goods become lsquo Thermal Paper Rolls for Fax Machines rsquo . In other words he has clearly found that as a result of the process carried on by the appellants, the goods were known as a different commercial commodity thus satisfying the test of manufacture. 5. emsp In the light of the above discussion and following the ratio of the Tribunal rsquo s order in Kores India Ltd. cited supra, we set aside the impugned order and allow the appeal. (Pronounced in Court)
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2004 (3) TMI 707 - ITAT AHMEDABAD
Penalty - For concealment of income ... ... ... ... ..... tum proceeding a particular provision might be attracted for addition to the income of the assessee. But when it comes to the question of imposition of penalty, then independent of the findings arrived at in the quantum proceedings, the authority has to find conclusively that the assessee owns the concealed amount. The Hon rsquo ble Gujarat High Court in the case of National Textiles v. CIT 2001 249 ITR 125 has held that when two views are possible and when no clear and definite inference can be drawn, in a penalty proceeding, penalty cannot be imposed. 12. For the reasons given by us hereinabove, we are of the view that this is not a fit case to levy the penalty under section 271(1)(c). We, therefore, cancel the penalty of Rs. 1,92,478 levied by Assessing Officer in the case of B.I. Investment Pvt. Ltd. and to the extent upheld by ld. CIT(A) in the case of Bipra Investments and Trusts Pvt. Ltd. for the assessment year 1985-86. 13. In the result, both the appeals are allowed.
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2004 (3) TMI 706 - ITAT JODHPUR
Inquiry before assessment, Block assessment in search cases ... ... ... ... ..... appeal raised by way of ITA No. 165/Ju/2001, ground No. 1 pertains to allowance of relief of Rs. 2,697. This ground stands disposed of in the appeal of the assessee. So this ground is dismissed. 43. Since the gross profit rate has already been applied, there cannot be any justification again for addition on the basis of some documents by taking recourse to audit report, once the records are rejected for all purposes. The assessee has relied various decisions which are contained in pp. 40-43 of the written submissions. We don rsquo t need to reproduce all the decisions cited and relied upon by the assessee because if any further addition is made to this income, it will lead to a conclusion that either the estimate so made for business income is not correct or the addition so made is not correct. In the result we uphold the finding of the learned CIT(A) in this regard. 44. In the result, the appeal of the assessee is partly allowed and the appeal of the Department is dismissed.
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2004 (3) TMI 705 - ITAT DELHI
Income from house property ... ... ... ... ..... ned the household expenses Rs. 5,000 per month and consequently made an addition of Rs. 40,000. On appeal it was contended before the CIT(A) that the assessee was living jointly with his family and the Assessing Officer had not taken into consideration the withdrawals made by his father and mother amounting to Rs. 93,096 and Rs. 35,932 respectively. The CIT(A) accepted such explanation of the assessee and accordingly deleted the addition made by the Assessing Officer. Aggrieved by the same the revenue is in appeal before the Tribunal. 7. After hearing both the parties we do not find any merit in the appeal of the revenue on this issue inasmuch as nothing has been brought before us to controvert the explanation of the assessee before the CIT(A). Considering the withdrawals made by his parents no addition was justified. The order of CIT(A) is, therefore, upheld on this issue. 8. In the result, the appeals of the assessee are allowed while the appeal of the revenue is dismissed.
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2004 (3) TMI 704 - CESTAT, CHENNAI
Demand - Clandestine manufacture and removal ... ... ... ... ..... her evidence by way of inquiry made by the department, receipt of unaccounted cotton in the factory, evidence of consideration received by the appellants etc. has been placed on record to substantiate the charge of clandestine manufacture and removal of cotton yarn by the appellants. The department itself has admitted that the appellants have regularly filed RT 12 return which has been assessed. I note that in similar circumstances the Tribunal in the case CCE, Chennai v. Dhanavilas (Madras) Snuff Co. reported in 2003 (153) E.L.T. 437 held that entries in private note book, in the absence of credible corroborative evidence is not sufficient to hold that there was clandestine manufacture and removal of goods. 6. emsp In view of the above finding and following the ratio of the case law noted above, I hold that there is no material to sustain the impugned order and I set aside the same and allow the appeal with consequential relief if any. (Pronounced in open Court on 26-3-2004)
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2004 (3) TMI 703 - CESTAT, NEW DELHI
Demand - Limitation - SSI Exemption ... ... ... ... ..... evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, beyond the period of six months. rdquo In view of the fact that the appellants have clearly shown the value of clearances to Nepal in their RT-12 return filed with the department, no mala fide intention to evade payment of duty can be attributed to them. Accordingly, larger period of limitation for demanding central excise duty cannot be invoked in the facts and circumstances of the present case. We, therefore, set aside the demand of duty being time-barred. As the duty has been held to be hit by time limit, the penalty on the appellants is also set aside without going into the merits of the matter. 6. emsp The appeal is thus allowed with consequential relief, if any, to the appellants. (Pronounced in open Court)
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2004 (3) TMI 702 - CESTAT, MUMBAI
Cenvat/Modvat - Penalty ... ... ... ... ..... gistered as an appeal against M/s. Spectrum Packaging. Consequently the findings against other parties who were appellants before Commissioner (Appeals), have become final and therefore are not discussed. 6. emsp The next prayer in the Revenue appeal is to restore the penalty of Rs. 75,000/- imposed on the respondents by the original authority. The Commissioner (Appeals) reduced the penalty to Rs. 15,000/- only. In this connection I observe that, the Commissioner (Appeals) has correctly noted that, there was no evasion since the entire material sent out by the respondents was properly accounted for and there was no evasion. Therefore, I hold that the reduction in penalty imposed on the respondents as ordered by the Commissioner (Appeals) for procedural infractions does not call for any interference, nor is there any reason to impose any separate penalty on Mr. Rao. 7. emsp In the circumstances, I hold that the Revenue appeal is devoid of merits. Accordingly I reject the same.
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2004 (3) TMI 701 - CESTAT, MUMBAI
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... ... ..... ny the refund. Following the same, the ground taken by Revenue in appeal should not have been entertained by CCE (Appeals). (b) CEGAT in the case of Samtel India Ltd. 1996 (86) E.L.T. 596 have held that identity of goods reprocessed and cleared with those received back was not essential or a criterion to reject the refund. Following the same, and nothing contrary relied by the CCE (Appeals) and produced before me, it is to be held so long as goods are of the same class, which in this case, they are, the refund cannot be impugned. (c) Refund could be denied under Rule 173L only on the grounds as mentioned under rule 173L (3). On the perusal of the same, none of the clauses therein are attracted and the procedure prescribed has been followed. The order cannot be impugned. (d) Commissioner rsquo s order cannot be upheld since he has not dealt with any of the case laws cited, while he was bound to follow. 4. emsp Hence these appeals are to be allowed. 5. emsp Ordered accordingly.
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2004 (3) TMI 700 - CESTAT, MUMBAI
Remission of duty - Warehouse - Words and Phrases ... ... ... ... ..... ough the godowns of CWC are commonly referred to as ldquo Warehouses rdquo , the term warehousing as appears in Rule 20 is very restricted in its application and is confined to only these goods which are notified under the said Rule 21. It is nobody rsquo s case that the export product namely ldquo dyes rdquo are notified under the said Rule. The term ldquo Warehouse rdquo as appears in the Section 4(4)(c)(ii) must therefore also refer to a warehouse of the same nature where non-duty paid goods notified under Rule 20 are permitted to be deposited. So even if the appellants were to make out a case that the CWC warehouse is a warehouse in which non-duty paid goods were permitted to be deposited, since the said goods are not notified under Rule 20, the premises can not be construed to be a warehouse, for considering the case for remission under Rule 21. 7. emsp Hence I hold that the appeal is without merits, and the same is rejected and the order of the Commissioner is affirmed.
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2004 (3) TMI 699 - CESTAT, NEW DELHI
Demand - Clandestine removal of goods ... ... ... ... ..... Suraj Prakash has admitted his signature on those 32 invoices. The Department has also not brought any material on record to controvert the finding of the handwriting expert that the signatures on those invoices were not of Suraj Prakash. The onus to prove that the invoices were authenticated by Suraj Prakash was on the Department which has not been discharged in the present matter. Similarly, the Department has not succeeded in establishing that the ingots said to have been received from Mawana Steels Pvt. Ltd. were, in fact, used in the manufacture of saria, which had been subsequently removed without payment of duty. Mere receipt of ingot is not sufficient to reach the conclusion that the said ingot would have been used in the manufacture of saria and its subsequent removal without payment of duty. The suspicision, whosoever, big, cannot be a substitute for proof. We, therefore, find no infirmity in the impugned order and accordingly reject the appeal filed by the Revenue.
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2004 (3) TMI 698 - CESTAT, MUMBAI
Confiscation and penalty - EXIM - DEEC Scheme - Misdeclaration ... ... ... ... ..... repared by the Central Excise officers. It is relevant to note that the goods have also been tested and found to be in conformity with the description given in the export declaration, as seen from para 20 of the show cause notice. In spite of the above, the Commissioner has held the non furnishing of the proper address of the grey fabrics supplier against the appellants and thus concluded that the appellants have not produced any evidence that such suppliers existed from whom grey fabrics were purchased by them. This, to our minds is not sufficient for holding that the goods exported were not fabrics made out of 100 Polyester Filament Yarn. The overwhelming evidence on record establishes that goods exported were fabrics made out of 100 Polyester Filament yarn, therefore the finding of the Commissioner that the export goods were liable to confiscation and appellants liable to penalty, is clearly unsustainable. Accordingly we set aside the impugned orders and allow the appeals.
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2004 (3) TMI 697 - CESTAT, NEW DELHI
Bead wire rings ... ... ... ... ..... ri.) that Bead Wire Rings manufactured by them and captively consumed in the manufacture of animal drawn vehicle tyres are not marketable and hence not excisable that the said decision has been followed by the Tribunal against in the Respondents rsquo own matter vide Final Order No. 17/2004-B, dated 17-12-2003 that the Commissioner (Appeals) has passed the impugned Order relying upon the Tribunal rsquo s Final Order dated 8-11-2002. 4. emsp We have considered the submissions of both the sides. We observe that this Tribunal has considered in detail the aspect of marketability of the Bead Wire Rings manufactured by the Respondents and captively consumed in Final Order No. 231/2002-C dated 8-11-2002 2003 (151) E.L.T. 644 (T) and has held that the Bead Wire Rings are not marketable. The Commissioner (Appeals) in the impugned Order has followed the said decision of the Tribunal only. We, therefore, find no infirmity in the impugned Order and reject the appeal filed by the Revenue.
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2004 (3) TMI 696 - CESTAT, BANGALORE
Confiscation of currency - Attempt to export foreign currency ... ... ... ... ..... omic Offences that the statements were taken from him under threat and coercion. Under these circumstances, we find that the authorities below have correctly relied on the statements made by the appellant. Apart from the above, the presence of the foreign currency with the appellant for which he could not give any explanation would go to prove that he was guilty of attempt to export foreign currency unauthorisedly outside India in contravention of the relevant provisions. We, therefore, find no reason to interfere with the finding entered in the impugned order. 6. emsp The learned Counsel for the appellant submitted that the quantum of penalty is liable to be reduced. In the nature of the offence and the quantum of foreign currency attempted to be taken out of India unauthorisedly, we do not find any reason to reduce the quantum of penalty which is already reduced by the Commissioner from Rs. 1,50,000/- to Rs. 75,000/-. In the result, the appeal fails and it stands dismissed.
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2004 (3) TMI 695 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Limitation - Recall of order ... ... ... ... ..... t. But, in the instant case, as observed above, the appellants themselves closed the unit and shifted to another place at Ghaziabad without disclosing their new address for the correspondence purposes to the Department. The appellants did contest the proceedings before the lower authorities, but they did not bother to know about the passing of the impugned order against them in May, 2000. No intimation in writing was sent by them to the Department that the impugned order-in-appeal should be conveyed to them at a particular address, after the conclusion of the hearing before the Commissioner (Appeals). Therefore, it is difficult to hold that there was no proper service of the impugned order-in-appeal on the appellants. Consequently, I do not find any sufficient ground to condone the inordinate delay of over one and a half year in filing the appeal. The COD application of the appellants accordingly stands dismissed. The appeal of the appellants is also dismissed as time-barred.
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2004 (3) TMI 694 - CESTAT, MUMBAI
Penalty - Invoice issued by dealer ... ... ... ... ..... 6. emsp In this connection, I note that apparently on account of such breach of the Rule, there was a potential revenue loss, though it did not happen in this case. Nevertheless, for this act of violation, the appellants were correctly held liable to penalty. 7. emsp The appellants are pleading that, simultaneous imposition of penalty on a proprietorship company and the proprietor is not sustainable. I find that this plea has a considerable merit and therefore I hold that separate penalty on the proprietor is not warranted when penalty has been imposed on the company. Therefore, the penalty imposed on Shri H.A. Oza is set aside. 8. emsp So far as the penalty imposed on M/s. Ashish Enterprises is concerned, in the facts and the circumstances of the case, I feel that the ends of justice will be met if the penalty is confined to Rs. 50,000/-. Accordingly, I reduce the penalty from Rs. 2 lakhs to Rs. 50,000/- on the company. 9. emsp The appeals are allowed partly in above terms.
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2004 (3) TMI 693 - CESTAT, CHENNAI
Cenvat/Modvat ... ... ... ... ..... ts that the word ldquo and rdquo occurring in the above proviso should be read as ldquo or rdquo for the reason that the expression ldquo if such inputs have been received rdquo is redundant as inputs can be used in the factory of production only after they have received and use cannot precede receipt of inputs. We are, however, unable to bring ourselves to agree with the submission. As rightly pointed out by the ld. SDR the word ldquo and rdquo has to be read as a conjunctive since the proviso stipulates that inputs should be received and used in the factory of production on or after 16th March, 1995. The use of the word ldquo and rdquo was necessary for the purpose of linking the inputs received with their use in the factory of production, which is required under the Modvat credit scheme. In view of the clear language in the 4th proviso to Rule 57F(4) we hold that the credit is not admissible to the appellants and accordingly uphold the impugned order and reject the appeal.
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