|
Advanced Search Options
Case Laws
Showing 121 to 140 of 546 Records
-
2006 (12) TMI 460 - CESTAT BANGALORE
... ...
... ... ..... aid service tax prior to October 30, 2004. 5.. The contention of the Revenue is that the respondents are registered prior to the Extraordinary Tax Payer Friendly Scheme and not registered this immunity scheme. Therefore, are liable to penal action. 6.. I find that the service provider who registered and paid service tax during Extraordinary Tax Payer Friendly Scheme up to October 30, 2004, not liable to any penalty. Therefore, I find no infirmity in the finding of the Commissioner (Appeals) that the respondents to pay service tax along with the interest prior to October 30, 2004 are also not liable for penalty. In view of these circumstances, I find no merit in the appeals. Therefore all the appeals are dismissed. Accordingly, I find that the issue is squarely covered by the decision of the Tribunal in the case of Bharat Securities and Services. Respectfully following the ratio of the said decision I find no merit in the appeal filed by the Revenue and the same is dismissed.
-
2006 (12) TMI 459 - KERALA HIGH COURT
... ...
... ... ..... is anything different from the lease or hire-purchase. It is admitted that in all cases for lease or hire-purchase, lease or hire-purchase agreements are first entered into by the petitioner with the customers and thereafter only goods are purchased and delivered to the customers for use by them under lease agreement or hire-purchase agreements, as the case may be. Since we have already found that there are two transactions in the deal, namely, execution of lease or hire-purchase agreements, and the subsequent purchases and delivery, we do not think the nature of transaction, that is lease or hirepurchase is affected, when goods are sourced from a State other than in the State in which it is given for lease or hire. In the circumstances, we are unable to uphold the contention of the petitioner that transactions are inter-State lease or inter-State hire-purchase and hence not liable to pay tax. We therefore uphold the orders of the Tribunal and dismiss the tax revision cases.
-
2006 (12) TMI 458 - CESTAT MUMBAI
... ...
... ... ..... missioner of Central Excise, Nasik 2006 7 STJ 138 (CESTAT-Mumbai). (ii) Ar Sandeep C Sikchi v. Commissioner of Central Excise, Nasik 2006 7 STJ 137 (CESTAT-Mumbai). (iii) Vijay Sabadra v. Commissioner of Central Excise, Nasik 2006 7 STJ 135 (CESTAT-Mumbai). (iv) Commissioner of Central Excise, Bhopal v. Bharat Security Services and Worker 39 s Cont. 2005 188 ELT 454 (Tri.-Delhi). (v) Commissioner of Central Excise, Bhopal v. Bhojpur Club 2006 TIOL 486 (CESTAT-Delhi). Having gone through the above referred decisions and further giving due credence to the payments made, even before issuing show cause notice and after adjudication of the matter, payment of original penalty imposed and further applying the scheme of amnesty to the case relating to the period prior to introduction of this scheme as laid down in the aforesaid decisions, I hereby set aside the impugned order passed by the learned Commissioner, Nashik and allow the appeal with consequential relief to the appellants.
-
2006 (12) TMI 457 - CESTAT MUMBAI
... ...
... ... ..... vice tax. Learned DR appearing for the Revenue draws my attention to the larger Bench 39 s decision of the Tribunal in the case of ETA Engineering Ltd. v. Commissioner of Central Excise, Chennai reported in 2004 174 ELT 19 (Tri.-LB), laying down that the minimum penalty under section 76 of the Finance Act, 1994 is Rs. 100 per day. Inasmuch as section 80 of the Finance Act, 1994 is not attracted to the present case, minimum penalty of Rs. 100 per day should have been imposed. He, however, seeks imposition of maximum penalty of Rs. 200 per day. After considering the submission, I find that there is discrepancy in computing the number of day 39 s delays in depositing the service tax. For the said purpose, I set aside the impugned order and remand the matter to the original adjudicating authority for recalculation of penalty amount in terms of section 76 of the Finance Act, 1994 read with the larger Bench 39 s decision referred supra. The appeal is thus allowed by way of remand.
-
2006 (12) TMI 456 - CESTAT CHENNAI
... ...
... ... ..... Tribunal was upheld by the Supreme Court in Commissioner of Central Excise, Meerut-II v. L. H. Sugar Factories Ltd. 2006 4 VST 91 2005 187 ELT 5 (SC). As noted by the lower authority in its notice of revision issued to the appellants, the Commissioner of Central Excise, Vadodara and Chennai III, filed Civil appeals against similar decisions of the Tribunal and such appeals were admitted by the Supreme Court and this was after the decision was rendered by the court in the case of L.H. Sugar Factories 2004 165 ELT 161 (Tri-Del). But there was no stay of operation of any of the said decisions of the Tribunal. Hence, the legal position on the issue, as on the date on which notice of revision was issued by the Commissioner, was the one settled by the apex court in L H. Sugar Factories 2006 4 VST 91 2005 187 ELT 5. Hence, the notice of revision itself was unnecessary. Needless to say, the impugned order has no legs to stand on and the same is set aside. The appeal stands allowed.
-
2006 (12) TMI 455 - GAUHATI HIGH COURT
... ...
... ... ..... 1990 1 SCC 731). The jural relationship that existed by virtue of entertaining the said contracts between the parties incurs certain statutory liabilities upon the parties. In this batch of writ petitions the terms of the contract on their proper construction, disclose that the transaction in question amounts to transfer of right to use equipment/machinery/vehicles to OIL/ONGC. Accordingly the definition of dealer is attracted in respect of the transaction/agreement arrived by the petitioners and that being a position, the liability for payment of taxes under the relevant financial statutes of the State under references, cannot be denied. However, what should be the rate of taxes or extent of the liability, would depend on the facts of each case as per the provision contained in the Schedule of the respective Acts. In view of the aforesaid discussions, I do not find any merit in this batch of writ petitions and the same stands dismissed. Earlier interim order stands vacated.
-
2006 (12) TMI 454 - PUNJAB AND HARYANA HIGH COURT
... ...
... ... ..... oes not control exercise of revisional jurisdiction; (ii) even when no limitation has been prescribed, the power of revision has to be exercised within a reasonable period. What is reasonable period has to be decided in facts of each case for which no hard and fast rule could be laid down. Applying the above principles to the present case, we find that the order of assessment is dated March 20, 2001 and is sought to be revised by notice dated September 4, 2006. Neither in the show cause notice nor in the reply filed, has any reason been mentioned justifying exercise of revisional jurisdiction after more than five years. In the absence of any special features or explanation, the period of five years cannot be held to be reasonable in the present case for exercise of revisional jurisdiction. The impugned notice has, thus, to be held to be arbitrary and liable to be set aside. Accordingly, we allow this petition and quash the impugned notice dated September 4, 2006, annexure P1.
-
2006 (12) TMI 453 - ANDHRA PRADESH HIGH COURT
... ...
... ... ..... No. 108, are not the benefits created by the certificate per se, but under the G.O. If the petitioner or, as a matter of fact, any other assessee, is entitled for the benefits under this G.O., or any other law for that matter, the same cannot be denied on the ground that some department or an officer of the State does not understand or recognise the correct legal position. The certificate, at best, is the understanding of the officer, who issued the same, about the applicability of the abovementioned G.O. At any rate, as on today, the Industries Department of the State, is also of the opinion that both the processes carried on by the petitioner are covered by the terms of the G.O. In the circumstances, we do not see any merits in the submission made by the learned Government Pleader for commercial tax and the writ petitions are liable to be allowed. Accordingly, all the four writ petitions are therefore, allowed as prayed for. That rule nisi has been made absolute as above.
-
2006 (12) TMI 452 - MADRAS HIGH COURT
... ...
... ... ..... ich has been acquired by the petitioner for the purpose of putting up an industry in the most backward area. Hence, I am of the view that the reason stated by the Industries Commissioner, which has been reproduced by General Manager, District Industries Centre to non-suit petitioner cannot be regarded as a reason and it cannot be legally sustainable in law and as such the reasoning stated in the impugned order is extraneous to the G.O with which reliance has been placed. For the foregoing reasons, the impugned order is set aside and the matter is remitted back to the respondent authorities to reconsider the issue and pass appropriate orders in accordance with law, having regard to the requirements as enunciated in G.O. Ms. No. 500 dated May 14, 1990, which has been considered in various judgments including the judgment in Sulochana Cotton Spinning Mills (P) Ltd. v. State of Tamil Nadu 1995 98 STC 125 (Mad). With these observations, the writ petition is disposed of. No costs.
-
2006 (12) TMI 451 - ANDHRA PRADESH HIGH COURT
... ...
... ... ..... ase. Learned counsel for the petitioner argued that assuming for the sake of argument that the allegations made in the notice are true, demand for penalty at the stage of the detention of the goods without there being (1)Oral. any proceedings initiated for levy of penalty is illegal and the issue is covered by an earlier decision of this court reported in Sujana Enterprises v. Assistant Commercial Tax Officer (Int) (Fac) 2005 142 STC 598. This court in the said judgment did hold as contended by the learned counsel for the petitioner. In the circumstances, we deem it appropriate to dispose of the writ petition directing the respondents to release the vehicle bearing No. AP 27V 3229 along with the goods to the petitioner on condition the petitioner pays the tax as indicated in the demand notice mentioned above. It is open for the respondents to initiate appropriate further proceedings in accordance with law for the levy of penalty. The writ petition is accordingly disposed of.
-
2006 (12) TMI 450 - CESTAT CHENNAI
... ...
... ... ..... to saying that the assessee had been maintaining a bona fide belief that they were not liable to pay service tax on the services in question, was not challenged by the Revenue and, therefore, it was not open to the learned Commissioner (Appeals) to substitute his satisfaction for the satisfaction recorded by the lower authority for purposes of section 80 of the Finance Act. Once it was found by the original authority that there was reasonable cause for the failure of the assessee to pay service tax in time, the proposal to impose penalties on them under sections 76 and 77 should have been dropped inasmuch as the assessee had, by showing such reasonable cause for the failure to pay tax in time, established a case for exoneration from penalty under section 80. On the facts of the case, the Tribunal 39 s Larger Bench decision cited by learned consultant seems to be supportive of the appellant 39 s case. In the result, the impugned order is set aside and this appeal is allowed.
-
2006 (12) TMI 449 - ORISSA HIGH COURT
... ...
... ... ..... n a prospective manner and therefore for the period in question, i.e., assessment years 1999-2000 to 2000-2001 in the present writ application, the mistaken notion has no relevance and legal consequence. Since this court follows the recent judgment of the apex court in the case MRF Ltd., Kottayam 2006 148 STC 225 2006 12 JT SC 244, this court refrains from answering the other issues raised in course of the arguments because this court is of the view that the same would be redundant in view of the latest judgment of the apex court. In view of the findings pointed out hereinabove, the writ application is allowed. The impugned assessment orders and the consequential demands are quashed and the Sales Tax Officer concerned is directed to complete the assessment afresh granting the benefit of exemption to the petitionercompany in terms of the eligibility certificate granted in form E(96) by the Director of Industries. There shall be no order as to costs. A.K. Ganguly J. - I agree.
-
2006 (12) TMI 448 - CESTAT CHENNAI
... ...
... ... ..... issue arising in this case can be settled without reference to any amendments made to the Service Tax Rules, 1994. The service under consideration is transfer of technology by the Korean Company to the appellants, which took place on 6-5-1997. The consideration (royalty) for that service was paid by the appellants on 5-9-2002. For determination of tax liability, the relevant date is the date on which the service was received by the appellants. This view was held in the case of Matsushita TV and Audio India Ltd. (supra). Hence the relevant date in the present case is 6-5-1997. On that date, neither Consulting Engineer s Service nor transfer of Intellectual Property was a taxable service. 4. emsp For the reasons noted above, the appellants are not liable to pay Service Tax on the royalty paid by them to the Korean Company for the service rendered by the latter in May, 1997. The impugned order is set aside and the appeal is allowed. (Order dictated and pronounced in open Court)
-
2006 (12) TMI 447 - SUPREME COURT
Whether the High Court in exercise of power of judicial review, was justified in quashing the award of the contract relating to first stretch to Jagdish Mandal and award of contract relating to second stretch to Laxman Sharma and directing reconsideration of tender?
Held that:- Appeal allowed. There were good and adequate reasons for the Committee to reject the lowest tenders of fifth respondent in both cases and there was no justification for the High Court to interfere with the contracts awarded to the respective appellant in these two appeals. We also record the statement made by the counsel for the appellants in the two appeals, on instructions, that the appellants are ready and willing to execute their respective works, without seeking any revision in rates or compensation for the delay in commencement of the work on account of pendency of the legal proceedings till now. The statement is recorded.
-
2006 (12) TMI 446 - SUPREME COURT
Status of transferred employees - whether their service conditions were well protected under the Rules governing them in the Parent Department and whether they were permanently transferred to GPVAs or on deputation has been set at rest and it has become final.
Whether it is deputation simpliciter or transfer?
Held thaat:- the expression ’Transfer’ is used in Section 25 loosely. They were actually sent on deputation keeping their lien with their Parent Departments. Once we hold that the respondents were on deputation to Gram Panchayats, the position of deputation in service is well settledthe expression ’Transfer’ is used in Section 25 loosely. They were actually sent on deputation keeping their lien with their Parent Departments. Once we hold that the respondents were on deputation to Gram Panchayats, the position of deputation in service is well settled.
The judgment and order of the Division Bench quashing G.O. dated 19.7.2005, 25.1.2006 and 8.9.2005 the direction that the Tube-well Operators and part-time Tube-well Operators are inextricably connected with the cadre of Gram Panchayat Vikas Adhikari; the direction that the Part-time Tube-well Operators shall be treated as permanent employees are all hereby, set aside.
-
2006 (12) TMI 445 - ITAT AHMEDABAD
Unexplained cash credit u/s 68 - deposits obtained by the company from its employees/depositors - Genuineness of transactions and creditworthiness of the depositors - HELD THAT:- In our view, having not disputed the facts that these persons were ex-employees of the assessee and drawing salaries it has to be implied that depositors possessed creditworthiness to make these deposits. It shall be pertinent here to mention that degree of proof cast on the assessee to prove creditworthiness is not of infallible nature, what is contemplated is that the assessee should be able to prima facie show that depositors had reasonable capacity.
In the peculiar facts and circumstances of the given case, we are of the view that the Assessing Officer has rigidly stuck to the issue of confirmations to overshadow all other material available on record which has not been considered at all. The assessee had furnished before the Assessing Officer whatever evidence was available with it, which in our opinion was sufficient to reasonably discharge primary onus cast on the assessee in terms of section 68. It was for the Assessing Officer to rebut the same on the basis of available record, instead the Assessing Officer had merely picked up non-filing of confirmations as a tool to discard other material and explanations of the assessee. Rejection of the explanations of the assessee is not based on objective considerations but by way of summary rejection. In our view, the assessee having given reasonable and plausible explanations, which have not been found to be wrong or unsatisfactory on any objective consideration, we hold that cash credit in question cannot be added as unexplained cash credit u/s 68 of the Act. Accordingly, this ground of the assessee is allowed.
Deduction of expenses on research and development u/s 35(2AB) - HELD THAT:- A plain reading of Section 35(2AB) clearly manifests that the assessee has to develop facility which presupposes incurring expenditure in this behalf, application to the prescribed authority, who after following proper procedure will approve the facility or otherwise and the assessee will be entitled to weighted deduction of any and all expenditure so incurred. These words refer back to the facility which is so developed. Consequently, a plain reading clearly indicates that the assessee is entitled to weighted deduction on expenditure so incurred by the assessee for development of facility.
A plain and harmonious reading of provision, rule and form clearly suggests that once facility is approved, entire expenditure so incurred on development of “R & D” facility has to be allowed for weighted deduction as provided by section 35(2AB). In our considered view, a plain and simple reading is enough to give meaning of provision. An interpretation is to be applied when there is an ambiguity in the meaning of provisions. In our view there is no such ambiguity here.
Even if we assume that there is any slight doubt in the meaning/language of provision, we have to refer to legislative intent. To boost up “R & D” facility in India, the Legislature provided this provision to encourage the development of the facility by providing deduction of weighted expenditure. Since what is stated to be promoted was development of facility, intention of the Legislature by making the above amendment is very clear that the entire expenditure incurred by the assessee on development of facility, if approved has to be allowed for the purpose of weighted deduction. In our view, legislative intention for bringing the amendment also justifies plain and simple meaning of the section. Thus, we hold that the assessee is entitled to weighted deduction in respect of entire expenditure incurred for development of in-house “R & D” facility in terms of section 35(2AB) and claim of the assessee shall be allowed. This ground of the assessee is allowed.
In the result, the assessee’s appeal is partly allowed for statistical purpose.
-
2006 (12) TMI 444 - KERALA HIGH COURT
Levy of entry tax - compensatory in nature ? - Constitutional validity of certain provisions of the Kerala Tax - seeking for a declaration that Section 2(1)(d), 2(1)(g), 2(1)(i) and Section 3 are discriminatory and ultra vires of Articles 14, 19(1)(a), 19(1)(g), 246, 265, 286, 301, 304(a), 304(b) - HELD THAT:- We have found that the compensatory character of tax is not self-evident from the Kerala Entry Tax Act. We have extracted the object of the Act which is for augmenting the general revenue by curbing the evasion of sales tax on goods purchased from outside the State, which cannot be characterised as a compensatory levy. This legal position is well settled by the judgment of the apex court in Jindal Stripe Limited's case,[2003 (9) TMI 345 - SUPREME COURT] wherein the court held that the tax imposed for augmenting the general revenue such as sales tax is not compensatory.
Whether the State has discharged the burden of showing that the levy is compensatory by placing materials before the court - In our view, there is absolutely no connection or nexus with the collection of entry tax and its utilisation for the benefit of traders/manufacturers from whom such tax is collected. Affidavit filed is not specific and the State has not been able to establish the nexus between entry tax collected and the benefit conferred upon the person from whom the tax is collected. We also notice, the State is also discriminating between traders who bring goods from outside the State or country to a local area as defined under Section 2(1)(h) read with Section 2(1)(d) and person who brings goods from an area within the State to a local area in the State. Facts would indicate that on the introduction of entry tax, manufacturers have opted to purchase raw materials from within the State because they are less costlier since the levy of entry tax has definitely created a tax barrier affecting the free flow of trade, commerce and intercourse, such a tax violates Article 301 of the Constitution and therefore liable to be declared as unconstitutional.
We therefore hold that unless and until State discharges its burden by placing materials before court that payment of compensatory tax is reimbursement/recompense, quantifiable/measurable benefit provided or to be provided to the payers or there is any broad correlation between the entry tax being realised and the services rendered, it cannot sustain levy of entry tax.
We are of the view, State has not discharged its burden by providing quantitative data on the basis of which compensatory tax is sought to be levied and the working test laid down in Automobile Transport's case [1962 (4) TMI 91 - SUPREME COURT], Jindal Stainless Ltd's case [2006 (4) TMI 120 - SUPREME COURT] or Vijayalakshmi Rice Mills [2006 (8) TMI 307 - SUPREME COURT] case is not satisfied in these cases for levying entry tax.
On facts we have already held that so far as these cases are concerned, imposition of levy of entry tax is not compensatory in nature. Further, even if the notwithstanding clause is employed to bring in within the ambit of Article 304(b) even then the procedure laid down in the proviso has not been satisfied; nor the element of public interest is established. The State could not prove that the Act imposes only reasonable restriction on the freedom of trade, commerce or intercourse as may be required in public interest. There is nothing to show that the levy was made in public interest and that there is nothing on record to suggest that the levy of entry tax on goods introduced by amendment Act had the prior sanction of the President as required under the proviso to Article 304(b); nor was there anything on record to suggest that before amending the act assent of the President was obtained as contemplated under Article 255 of the Constitution of India. What is placed before us is only a letter from the Government of India in response to the letter of June 1992 sent by the Taxes Department stating that the Government of India have no objection to the introduction of the Kerala Tax on Entry of Goods into Local Areas Bill 1992 by the State Legislature under Article 304(b) of the Constitution which is not the assent or previous sanction of the President as per the proviso to Article 304 (b) of the Constitution.
We therefore hold that the levy of entry tax on goods imported from other State to the State of Kerala and from abroad is not compensatory in nature since the State Government could not discharge its burden by placing materials before court that payment of levy of entry tax is reimbursement/recompense for the quantifiable/measurable benefit provided or to be provided to the petitioners. The impugned Act imposing entry tax cannot be said to be specifically meant for facilitating trade, commerce and intercourse, but is raised for augmenting the general revenue of the State.
We therefore hold that the demand and collection of entry tax under the Kerala Tax on Entry of Goods into Local Areas Act, 1994 is illegal, unauthorised and violative of Article 301 of the Constitution of India. Original Petitions are allowed as above and the levy and demand notices issued would stand quashed.
-
2006 (12) TMI 443 - CESTAT AHMEDABAD
Medical and surgical instruments and apparatus - Infusion set - Exemption under Notification
-
2006 (12) TMI 442 - CESTAT, AHMEDABAD
Rectification of mistake - Recall of order ... ... ... ... ..... remaining absent when it was passed and, if it is established to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex parte order, restore the appeal to its file and hear it afresh on merits. 4. emsp The main contention of the learned Counsel for the appellant/applicant is that the cases cited by him in the written submissions have not been considered by the Tribunal while passing the order dated 19-12-2005. Besides, he also submitted that since the order is ex parte and the applicant/respondent could not appear before the Tribunal due to the reasons as given in ROM application, that the request of the applicant for keeping the matter in the next week was rejected and the applicant being from outside could not appear on the date when the matter was heard. We, therefore, consider it reasonable to recall order dated 19-12-2005 and restore the appeal to its original number. ROM is accordingly allowed. (Dictated and pronounced in the open Court)
-
2006 (12) TMI 441 - CESTAT, AHMEDABAD
Valuation - Bagging charges - Inclusion of ... ... ... ... ..... the country rsquo . It would appear to us that the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country, the taxable event being reached at the time when the godos reach the customs barriers and the bill of entry for home consumption is filed rdquo . It can be seen from the above reproduced portion of the Hon rsquo ble Supreme Court rsquo s judgment that taxable event is reached at the time when the goods reach the customs barriers and when the bill of entry for home consumption is filed. The charges incurred by the respondents for bagging fertilizers could not be included in the assessable value as the goods have already landed into the Indian territory, and action of bagging is post-importation activity. 6. emsp Accordingly, the appeal filed by the Revenue is dismissed is being devoid of any merit. (Dictated and pronounced in the open Court)
............
|
