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Showing 41 to 60 of 490 Records
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2006 (6) TMI 499 - CESTAT MUMBAI
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... ... ..... Commissioner of Customs, Mumbai - 2003 (156) E.L.T. 501 (Tri.-Mumbai) wherein it has been held that declaration of retail prices on packages imported is not required to be made by the importer alone but importer is merely to ensure that declaration made in appropriate manner when goods imported - Importer’s instructions to suppliers to affix MRP on goods before their arrival in India not a violation of Rule 33(2) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977. It was submitted that dispute was identical as in Viacom case the goods were TV sets only and the applicable rate of CVD was 16 as per Entry No. 225 of the table to Notification No. 5/95. 3. We have considered the submissions. We find that the appellants’ case is squarely covered by the Tribunal decision in Viacom Electronics Pvt. Ltd. case (cited supra). We accordingly follow the same and allow the appeal and set aside the order of Commissioner (Appeals). (Pronounced in Court)
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2006 (6) TMI 498 - CESTAT CHENNAI
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... ... ..... le. At this stage, the learned Sr. Advocate has pleaded financial hardships for the company and has placed on record (i) provisional (unaudited) balance sheet as on 31-3-2006 (ii) provisional (unaudited) Profit and Loss account for the year ended 31-3-2006 and (iii) Schedules to Profit and Loss account as on 31-3-2005. 3. We are unable to entertain the unaudited accounts presented by the appellants, nor can we accept the audited accounts for the year ended 31-3-2005 as proof of the present financial status of the Company. Nevertheless, we have considered the plea of financial hardships coming from the mouth of the learned Sr. Advocate. Learned SDR, who has reiterated the findings recorded by the lower appellate authority, has been able to make out a reasonably good case for the Revenue. 4. Appellants are directed to pre-deposit ₹ 30,00,000/- (Rupees Thirty lakhs) within four weeks and report compliance on 31-7-2006. (Dictated and pronounced in the open Court)
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2006 (6) TMI 497 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... e/are being actually used for the purpose of the petitioner 39 s small-scale industrial unit. If it is found that the purchased premises was/is being used for manufacturing purpose of the petitioner-firm, the investments made for the purpose of purchasing the disputed premises will be accepted as admissible investment for the purpose of determining the petitioner 39 s gross value of fixed assets. For the reasons aforesaid, we set aside the impugned order dated March 12, 2004, March 26, 2004 and June 3, 2004 passed by the Commercial Tax Officer, Lalbazar charge. We direct the concerned Commercial Tax Officer to redetermine the gross value of fixed assets of the petitioner in the light of the present judgment and extend the benefit of tax exemption on the basis of redetermined gross value of fixed assets within a period of two months from the date of communication of this order. Application is thus disposed of. No order as to costs. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (6) TMI 496 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... n to take advantage of the absence of the way-bill and to evade payment of tax. The impugned order imposing penalty is thus erroneous and is liable to be set aside. Hence, the application is allowed. The impugned order passed on June 13, 2003 by the Additional Commissioner, Commercial Taxes, West Bengal in Revision Case No. R-75/2002-03 affirming the order dated August 27, 2002 passed in the Revision Case No. R-18(CS/2002-03) by the Deputy Commissioner, Commercial Taxes, Central Section affirming the penalty order passed on May 20, 2002 by the Assistant Commissioner, Commercial Taxes, Central Section in connection with the seizure case No. 320/G/01/ 2001-02 stands set aside and the notice under section 57 of 1994 for garnishee stands recalled. The seizure seized goods stands finally released to the applicant and the undertaking given in this connection stands discharged. No order as to costs. PRADIPTA RAY J. (Chairman). - I agree. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (6) TMI 495 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... urnished by the transporter that it was not possible for him to give the required declaration and that the driver could not find the Dalkhola check-post. As there was violation of section 72 read with rule 223 and the explanation furnished by the transporter cannot be accepted, we are of the view that the petitioner cannot be totally absolved of its liability to pay penalty. But the amount of penalty should be reduced because of the presence of mitigating circumstances. Considering the facts and circumstances of the present case in its totality, we reduce the penalty from Rs. 2 lakhs to Rs. 1 lakh. The impugned penalty order passed by the Commercial Tax Officer and confirmed by the Assistant Commissioner is accordingly modified. If the petitioner has lready paid the entire penalty amount, the concerned respondents will refund Rs. 1 lakh to the petitioner within a period of three months from the date of communication of this order. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (6) TMI 494 - MADRAS HIGH COURT
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... ... ..... prosecute the appeal, atleast a direction may be given to the second respondent to entertain the appeal without payment of 25 per cent. Here again, I am not able to accept the argument of the learned counsel as the payment of 25 per cent of the tax is a statutory requirement for maintaining the appeal. This court while exercising power under article 226 cannot re-write the law. When the statute requires that a condition to be complied with in order to maintain an appeal, that has to be complied with by the petitioner in order to have maintenance of the appeal. Hence, I am not able to countenance on both the grounds advanced for maintaining the appeal. The petitioner is having a very effective and efficacious statutory appeal remedy. The writ petition is dismissed. However, it is open to the petitioner to prosecute the appeal already pending by complying with the requirements of statutory provision. No costs. Consequently, connected Miscellaneous petitions are also dismissed.
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2006 (6) TMI 493 - KERALA HIGH COURT
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... ... ..... erned it is settled position that interest cannot be demanded under section 23(3) except for default. There cannot be any default in payment of tax at compound rate because such payments are made based on orders issued by the officer in the prescribed format in form 22 on compounding application filed by the petitioner. Therefore no interest is payable under section 23(3) unless default is committed after fresh demand is raised based on revised assessment or regular assessment. The assessing officer is therefore directed to issue revised orders modifying the demand to the extent required. Accordingly the writ petitions are disposed of sustaining the separate demand of tax on standard gold (bullion) in addition to the tax payable at compound rate but with direction to the assessing officer to modify tax liability at compound rate by excluding tax paid under section 5(1) on first sales of standard gold (bullion) in the previous year. Writ petitions are disposed of accordingly.
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2006 (6) TMI 492 - MADRAS HIGH COURT
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... ... ..... ein it is held as follows (at page 319) . . . These were basically questions of fact which should have been agitated before the statutory appellate authority. There was no reason for the assessee to bypass the statutory remedy and approach the court with a writ petition and the High Court ought not to have allowed the assessee to bypass the statutory remedies where the questions could have been properly agitated and ascertained. Since I am of the view that this writ petition challenging the notice is pre-mature in nature, it is better for the assessee to have the matter agitated by filing objection as called for in the notice. The time given to the petitioner for filing objection is already over. Hence, another 20 days time is hereby given to the petitioner to file its objection, if any, to the notice, which is impugned in the writ petition. With the above observation, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
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2006 (6) TMI 491 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... her asset or goods. As already pointed out the judgment of the Constitution Bench in Sunrise Associates 2006 145 STC 576 appears to have reopened the controversy regarding the nature and character of REP licences. In any event, penalty under section 11E(4) of the 1941 Act should not have been imposed in the facts and circumstances as discussed hereinabove. For the reasons aforesaid, we set aside the impugned orders passed by the CTO, Esplanade Charge, the orders passed by the Assistant Commissioner of Commercial Taxes, Chowringhee Circle and the Deputy Commissioner of Commercial Taxes, Chowringhee Circle so far as those orders relate to imposition of penalty on sales of REP licences under section 11E(4) of the 1941 Act during the period before the date of delivery of judgment of the Supreme Court in Vikas Sales Corporation 1996 102 STC 106 1996 4 SCC 433. Applications are allowed to the extent indicated above. No order as to costs. B.K. MAJUMDAR (Technical Member) - I agree.
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2006 (6) TMI 490 - KARNATAKA HIGH COURT
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... ... ..... e of revision. The said judgment is applicable to the facts of this case. His submission is well founded and it is to be accepted in the light of the judgment of the apex court. Before concluding, we deem it proper to notice the submission of the learned High Court Government Advocate in the case on hand. She says that the time for revision by Joint Commissioner is over in terms of section 15(2) of the Act. She would say that the assessment order suffers from errors of law and errors of fact and that, therefore, she says that the Government has to be given an opportunity to work out its remedial action on the facts of this case. Her submission is reasonable. In the result, we accept this appeal. The order of the revisional authority is set aside. Questions of law framed are answered in favour of the assessee and against the State. However, we deem it proper to reserve liberty to the respondent to work out their remedial measure if available in law and in accordance with law.
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2006 (6) TMI 489 - JHARKHAND HIGH COURT
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... ... ..... g regard to the facts and circumstances and in view of the findings aforesaid, the assessment orders are, accordingly, set aside and consequently, the respondents are prohibited from initiating any proceeding for recovery or to take any coercive step against the petitioner in pursuance of the assessment orders in question. It is further made clear that the liability of dealer shall survive and continue and would be liable to be taxed, if the provisions are made workable within a reasonable period. The reassessment orders all dated November 27, 2004 and the consequential notice dated November 29, 2004 having been declared illegal, those orders and notices challenged in W. P. (T) No. 358 of 2005, W. P. (T) No. 542 of 2005 and W. P. (T) No. 533 of 2005 are also set aside. All the writ petitions are allowed with the aforesaid observations and directions. However, having regard to the facts and circumstances, there shall be no order as to costs. Narendra Nath Tiwari J. - I agree.
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2006 (6) TMI 488 - KERALA HIGH COURT
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... ... ..... e period April 1, 1998 to March 31, 1999. The assessee was well aware of its liability to pay tax on the goods produced out of inter-State purchases which alone had been included under SSI non-taxable goods. As we have already indicated, all the authorities have concurrently found that there is escaped assessment. If there is escaped assessment, interest due under sub-section (3) shall accrue on the tax due on such turnover with effect from such date on which the tax would have fallen due for payment had the dealer included the same in the return relating to the period to which such turnover relates. The assessee in this case deliberately suppressed the taxable turnover while conceding the turnover in question under exempted column as non-taxable items. Under such circumstances we are in agreement with the Commissioner that the dealer is liable to pay interest on the escaped assessment under section 23(3A). The appeal therefore lacks merit and the same would stand dismissed.
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2006 (6) TMI 487 - GAUHATI HIGH COURT
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... ... ..... uary 4, 1995 and May 5, 1995 are bad in law being contrary to the provisions contained in the 1956 Act as well as the 1993 Act. Therefore, the respondents are restrained from demanding any security or additional security from the petitioner in terms of the said orders. However, the amount which has already been realised from the petitioner as security deposit, shall be subject to final assessment to be made under the relative provisions of law. This order will also not preclude the concerned authority in passing the appropriate order requiring the petitioner to furnish security, subject to compliance with requirement of law and upon hearing the petitioner. It is also open to the assessing authority to ascertain as to whether the transportation of non-ferrous scraps by the petitioner to M/s. Gaurav Metal Corporation or to any other party is by way of stock transfer otherwise than by way of sale. The writ petition is accordingly allowed to the extent indicated above. No costs.
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2006 (6) TMI 486 - KARNATAKA HIGH COURT
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... ... ..... ued as the conferment of power upon the person, Sri Lakshmipathaiah but the conferment of power as assessing authority can be only upon the officer who will be in office to discharge his statutory duties as provided under section 3-B(2)(a) of the Act. Therefore, the contention urged in this regard must also fail. For the reasons stated supra, we are in full agreement with the conclusion arrived at by the learned single Judge on the contentious issue that arose in the case though he has not adverted to the provisions and rival legal contentions urged in the writ petition. We are supplementing our reasons to the order of the learned single Judge as stated supra which is impugned in this appeal, to sustain the same. For the reasons stated supra, we do not find any illegality or irregularity in reassessing the CST amount due to the department vide reassessment orders, which were impugned in the writ petition. Accordingly, this appeal is dismissed as the same is devoid of merits.
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2006 (6) TMI 485 - KERALA HIGH COURT
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... ... ..... e to the State towards sales tax arrears. Counsel for the KSIDC submitted that after realising the amount due to KSIDC amount of Rs. 38,84,017 was deposited before the Debt Recovery Tribunal in O.A.No.370 of 2000 and the Federal Bank has received the said amount with a condition that they will redeposit the same if the Tribunal orders the same. Counsel submitted that the Government should approach the Debt Recovery Tribunal and get the amount released from the Federal Bank Limited. We are of the view, it is open to the State Government to proceed not only against the KSIDC but also against the Federal Bank since both KSIDC as well as the Federal Bank do not have any superior rights over the State and also since the State has got a first charge over the properties in question. We, therefore, hold that section 29 of the S.F.C. Act has no precedence over the provisions of sections 26A and 26B of the KGST Act. Writ appeal therefore lacks merit and the same would stand dismissed.
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2006 (6) TMI 484 - CESTAT CHENNAI
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... ... ..... the appeal. The learned SDR argued that the appellant, in addition to supplying technical know-how also rendered assistance to M/s. RIL in maintaining the quality of the product manufactured under the agreement and continued to provide technical advice in manufacturing the licensed product. On a careful consideration of the facts of the case, prima facie, I find that the transaction between the appellant and M/s. RIL involved exchange of technical know-how for a price. Part of the said compensation was paid after service provided from outside India was brought under the service tax net. The demand of service tax made does not appear to be sustainable in view of the case law Navinon Ltd. v. CCE 2004 172 ELT 400 (T). In view of the above position, I grant complete waiver of pre-deposit in terms of section 86 of the Finance Act, 1994, read with section 35F of the Central Excise Act and also stay the recovery of the dues as per the impugned order till the disposal of the appeal.
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2006 (6) TMI 483 - CESTAT MUMBAI
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... ... ..... ervice tax not payable, was not upheld and service tax under section 65(115) of the Finance Act, 1994. The learned advocate relies upon the Division Bench decision of the Madras High Court in the case of Secy., Federn. of Bus-operators Assn. of T. N. v. UOI 2001 134 ELT 618 (Mad). The issue revolves around the fact whether the said vehicle would meet the requirement of the Motor Vehicles Act, 1988, read with rule 128 of the Central Motor Vehicles Rules, 1989. In the present case, there is no material at this stage to show that the vehicle has been so constructed as in the case in Sri Pandyan Travels v. CCE 2004 163 ELT 409 (Mad). Therefore, following the Division Bench decision, we find no reason to grant the stay of operation of the Commissioner (Appeals) order. Stay application is accordingly dismissed. We would agree to the request of the Departmental Representative to grant out of turn hearing and the matter to be placed for hearing on June 26, 2006, for regular hearing.
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2006 (6) TMI 482 - CESTAT NEW DELHI
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... ... ..... gards the service tax paid on the cancelled tickets, he has also produced voluminous records before me to substantiate his claim. Since this proof of substantiation was not before the learned Commissioner (Appeals), to my mind, it would be in the interest of justice to allow the appeal and remand the matter back to the Commissioner (Appeals) to consider all the documents and pass a fresh order on the merits. At this stage, the learned advocate submits that the question of limitation should also be considered by the appellate authority. Since I am remanding the matter back, the Commissioner (Appeals) may also consider the question of limitation afresh after considering the evidence that may be produced by the appellant. Accordingly, the appeal is allowed by way of remand to the Commissioner (Appeals) to consider the matter afresh after granting the appellant an opportunity of hearing and producing the evidence in support of their claim. The appeal is allowed by way of remand.
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2006 (6) TMI 481 - CESTAT NEW DELHI
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... ... ..... 8 ELT 454 (Tribunal-Delhi) had held as under I find that the service provider who registered and paid service tax during extraordinary tax prayer 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. The ratio laid down by the Tribunal in the case of Bharat Security 39 s case 2005 188 ELT 454 (Delhi) squarely applies to the issue before me. Following respectfully, the ratio laid down by the Bharat Security Services case 2005 188 ELT 454 (Tribunal-Delhi), I find that the penalty imposed on the respondents by the Commissioner (Appeals) is in itself is liable to be set aside. I set aside the penalty imposed on the respondents. The appeal of the Revenue is dismissed.
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2006 (6) TMI 480 - ANDHRA PRADESH HIGH COURT
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... ... ..... enied the opportunity of taking aid from the contents of the assessment order itself to the extent they help him. To avoid such objections, it is desirable that as far as practicable, the penalty proceedings are concluded after the assessment is made, though they might have been initiated earlier. Otherwise, the penalty orders may often become vulnerable to attack on the ground of denial of reasonable opportunity or the like grounds. However, we do not wish to state as a proposition of law that a penalty order passed simultaneous with an assessment order would always be vitiated. It depends upon the facts and circumstances of each case. For these reasons, we allow the writ petition to the extent of quashing the penalty imposed by the impugned notice. However, the respondent is free to initiate the proceedings for imposing the penalty, if they are advised so. As far as assessment is concerned, the petitioner is at liberty to seek alternate remedies which are available in law.
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