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2007 (6) TMI 539
... ... ... ... ..... are sub-judice. In the present case, the action of the authorities in adjusting the refund is against the legal provisions. Section 11 should be involved only when the demands have reached finality and should not be invoked even at the initial stage. Section 11BB provides interest for delayed refunds. This is squarely applicable to the present case. The Commissioner (A) has not at all given any reason as to why the said section is not applicable. In view of the above findings, we allow the appeal with consequential relief." 9. It is clear from the above observations of the Tribunal that ex-parte, arbitrary and erroneous adjustment of amounts due to an assessee by revenue authorities does not affect the assessee's claim for interest in regard to a delayed refund/rebate claim from the date of filing of the claim. 10. The impugned order is set aside and both appeals are allowed with consequential relief, if any, to the appellant. Dictated and pronounced in open Court.
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2007 (6) TMI 538
... ... ... ... ..... ith the contract between the parties. Needless to say that all such grounds, which render the action of the Bank/Financial Institutions illegal can be raised in the proceedings under Section 17 of the Act before the Debt Recovery Tribunal. 11. Learned Additional Solicitor General and the learned counsel appearing for banks and financial instituions fairly stated that all the objections which can be legally raised in the reply to the notice under Section 13(2) of the Act can also be raised in the proceedings under Section 17(1) of the Act. It would be for the Debt Recovery Tribual to decide in each case whether the action of the bank is in accordance with the provisions of the Act and is legally sustainable. 12. In our opinion, the writ petitions are devoid of merit and hereby dismissed with liberty to the writ petitioners to raise all the contentions before the Debt Recovery Tribunal as permissible by law. No costs. Consequently, connected miscellaneous petitions are closed.
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2007 (6) TMI 537
... ... ... ... ..... ”. In the present case, I find that the appellants had reversed the Cenvat credit in the month of February and March, 2004, whereas the show cause notice was issued on 15-9-2005. I, therefore, find that the ratio of the decision, supra is squarely applicable to the present case. Therefore, the interest demanded under Section 11AB of the Central Excise Act, 1944 is liable to be set aside.” 4. From the above reproduced portion of the order of the Commissioner (Appeals) it is very clear that there is no contrary evidence to show that the credit availed by the respondent was not in line with the provisions of Rule 12, that is to say that they are taken credit wrongly. In the absence of any such contrary evidence, I am in agreement with the impugned order and the same does not require any interference. 5. Accordingly, in the facts and circumstances of this case, the impugned order is upheld and the appeal filed by the Revenue is rejected. (Dictated in Court)
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2007 (6) TMI 536
... ... ... ... ..... the issue of show cause notice, the question of levy of interest under Section 11AB and penalty under Section 11AC does not arise”. In the present case, I find that the appellants had paid the Central Excise duty of ₹ 5,22,453/- and interest of ₹ 2,06,410/- on 31-3-2003, whereas show cause notice was issued on 6-7-2004, I, therefore, find that the ratio of the decisions, supra are squarely applicable to the present case. Therefore, I set aside the penalty of ₹ 5,22,453/- imposed under Section 11AC of the Central Excise Act, 1944”. From the above reproduced findings it is very clear that the Commissioner (Appeals) has followed the law as settled by the Hon’ble High Court of Bombay in the case of Commissioner of Central Excise v. Gaurav Mercantiles Ltd. 2005 (190) E.L.T. 11 (Bom.) . 6. Accordingly, in the facts and circumstances of the case I do not find any merits in the appeal of Revenue and the appeal is rejected. (Dictated in Court)
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2007 (6) TMI 535
... ... ... ... ..... t case, duty of ₹ 1,11,813/- was paid before the issue of show cause notice. Thus the ratio of the decision is therefore squarely applicable in the present case and the penalty of ₹ 1,11,813/- imposed under Rule 15 of Cenvat Credit Rules, 2004 is liable to be set aside. In view of the above, the penalty is set aside. The duty demand of ₹ 1,11,813/- and recovery of interest under Section 11AB of Central Excise Act, 1944 are upheld”. From the above reproduced findings, it is very clear that the ld. Commissioner (Appeals) has correctly followed by law as settled by the series of decisions of this Tribunal and it is also seen that the issue is squarely covered by the decision of the Hon’ble High Court of Bombay in the case of CCE v. Gaurav Mercantile Ltd. as reported at 2005 (190) E.L.T. 11 (Bom.) , in favour of respondents. 5. Accordingly, the facts and circumstances of the case, the appeal filed by the Revenue is rejected. (Dictated in Court)
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2007 (6) TMI 534
... ... ... ... ..... such tax. After a perusal of the Board’s Circular and the relevant Notifications viz. 6/99-ST, 2/03-ST, 21/03-ST and after consideration of the Export of Service Rules, 2005, we have found good case for the appellants. The tenor of the provisions appears to be that there shall be no service tax on export of services, irrespective of the manner in which consideration for the service is received by the service provider. It is not in dispute in the present case that the service recipients are resident abroad and have no office in India. After examining the provisions in the light of these facts, we have taken the above view. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the amounts of tax and penalties. 4. Ld. SDR urges us to post the appeal for early disposal having regard to the high stake involved in the case. Ld. Counsel has no objection. The appeal is directed to be posted to 2-8-2007. (Dictated and pronounced in open Court)
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2007 (6) TMI 533
... ... ... ... ..... ection 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 14. Above being the position, the inevitable conclusion is that the prosecution has failed to establish the accusations. The conviction is set aside. The appeal is allowed. The appellant be set at liberty forthwith if not required in any other case.
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2007 (6) TMI 532
... ... ... ... ..... for non-deposit of pre-deposit amount. 2. It may be noted here that the Petitioner did not challenge the order of pre-deposit dated 20th October, 2005 and sought extension of time twice, and at this belated stage the Petitioner is seeking to move this Court. We are not inclined to entertain this petition. We do not find anything illegal or erroneous in the orders passed by the Tribunal. Hence, the Petition stands dismissed. 3. Now, the learned Counsel for the Petitioner states that the Petitioner has already deposited ₹ 6.5 lakhs out of the pre-deposit amount of ₹ 10 lakhs and that the Petitioner undertakes to deposit the balance amount of ₹ 3.5 lakhs within a period of eight weeks from today. Hence, it is made clear that if the aforesaid balance amount of ₹ 3.5 lakhs is deposited by the Petitioner within a period of eight weeks from today, the aforesaid Appeal before the CESTAT will stand revived for disposal, failing which it will remain dismissed.
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2007 (6) TMI 531
... ... ... ... ..... Government and once the licence fees are enhanced in exercise of the powers vested in the State Government under the Constitution and under the provisions of the Punjab Excise Act and Rules made thereunder, the licence fee could have been enhanced by the State Government since the petitioners have got no right to deal in the trade of liquor and accordingly, the enhancement of the fees was within the competence of the State Government. The burden of the fees was to pass to the consumers and it was not affecting any fundamental right of the petitioner to indulge in any trade or business and as such, the challenge made to the impugned notifications Annexures P-13, P-14, P-14/A, P-16 and P-16/A issued vide notifications dated 23.3.1996, 23.3.1996, 30.3.1998, 31.3.1997 and 30.3.1998 are not liable to be quashed in any manner whatsoever. The result of the above discussion is that both the petitions are liable to be dismissed, which are dismissed accordingly. No order as to costs.
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2007 (6) TMI 530
... ... ... ... ..... OCL Vs. C.C., Mangalore 2003 (159) E.L.T. 1152 (Tri. - Chennai) (iv) MSEB Pole Factory Vs. CCE., Aurangabad 2005 (187) E.L.T. 209 (Tri. - Mumbai) 2. The learned Counsel submits that in terms of the above noted judgments, the interest is payable only after finalization of assessment and not when the duty was paid during the provisional assessment. 3. The learned DR re-iterates the findings of the lower authorities. 4. I have perused the judgments and found that the issue is covered in the assessee's favour. There is no dispute in the matter that the assessments were provisional. In terms Rule 7 (4) of the Central Excise Rule, 2002, the interest is payable only after the expiry of period of one month from date when the amount is determined. The confirmation of demand is not justified. Respectfully following the ratio of the above judgments, the impugned order is set aside and the appeal is allowed with consequential relief if any. Pronounced and dictated in the open court.
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2007 (6) TMI 529
... ... ... ... ..... ayment of service tax or for payment of excise duty. 5. Sub-Rule 4 of Rule 3 of Cenvat Credit Rules 2004 relate to utilization of Cenvat credit. That sub-Rule makes it clear that credit can be utilized for payment of excise duty as well as service tax on any output service. Thus, payment of service tax is a specifically authorized item in regard to service tax credit. In the present case, the appellant is treated as a service provider when he it service tax on transport service. Corollary of it is that the transport involved is an output service. Therefore, the finding of the Commissioner that since the appellants are manufacturers of excisable goods they cannot be treated as provider of output service is not sustainable. This Tribunal s decision in the case of Nahar Industrial Enterprises Ltd. also supports the appellant s case. 6. In the result, the appeals succeed and are allowed with consequential relief, if any, to the appellants. (Dictated and pronounced in open court)
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2007 (6) TMI 528
... ... ... ... ..... The Tribunal has relied on the Madras High Court Judgment rendered in the case of Secretary Federation of Bus Operators Association of T.N. v. U.O.I, reported in 2006 (2) S.T.R. 411 (Mad.) 2001 (134) E.L.T. 618 and has allowed the appeal. The learned Counsel submits that the issue is covered and prays for allowing the appeal along with stay application. 2. The learned DR prays for time to call for comments from the Commissioner with regard to the reliance on the citations. He further submits that the Department has gone in appeal in this aspect. 3. On a careful consideration of the submissions made by both the sides, we find that the issue is covered by the cited judgments. Hence the stay application is allowed by granting waiver of pre-deposit of the amounts and staying its recovery till the disposal of the appeal. As the issued is covered by the cited judgments, the appeal is posted for out of turn hearing on 31-7-2007. (Pronounced and dictated in the open Court)
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2007 (6) TMI 527
... ... ... ... ..... rayer for exemption under Notification No. 9/2003-ST and Circular No. 59/8/03-ST, dated 20-6-2003 clarifying that technical coaching is not covered has not been accepted. Learned counsel refers to this Bench Order Nos. 172-175/07, dated 28-3-2007 in the case of ICFAI v. CCE which is on identical situation wherein also this Bench has granted waiver of pre-deposit and have listed the case for final hearing on 26-6-2007. 2. Heard learned DR who files detailed written submission. 3. Considered the submissions perused the cited stay order and other orders relied by the counsel. This Bench has already in identical situation granted waiver of pre-deposit and have listed the case for final hearing on 26-6-2007. Therefore, the stay application is allowed granting waiver of pre-deposit and staying its recovery. This appeal is to be linked with the appeal of ICFAI coming up for hearing on 26-6-2007. All these appeals stand adjourned. All the matters to come up for hearing on 27-9-2007.
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2007 (6) TMI 526
... ... ... ... ..... business from April 1, 19666 and further agreed to refrain from carrying on the business with Hindustan Lever Ltd. or handle any film advertising business till the end of 1975. In consideration of these terms, Blaze agreed to pay the assessee a sum of ₹ 1,50,000/-. The assessee's claim that this amount was a capital receipt not liable to tax was negatived by the Income Tax Officer but upheld by the AAC and the Tribunal. On a reference Held, that as the receipt was referable to the restrictive covenant, it was a capital receipt not liable to income tax. 16. In the background of above discussion, we are of the considered opinion that the sum of ₹ 3,44,92,800/- received by the assessee in this case pursuant to a restrictive covenant amounts to non compete fee which was not taxable for the relevant assessment year. Hence, we set aside the order of authorities below and decide the issue in favour of assessee. In the result, this appeal by the assessee is allowed.
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2007 (6) TMI 525
Consulting Engineer service - transfer of technology by foreign company - scope of service - appellant located abroad - Jurisdiction of Commissioner -
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2007 (6) TMI 524
Refund of Education Cess - Area based exemption - Education Cess - Held that: - it is evident that when the exempted amount of duty was required to be refunded for operationalising the exemption, Education Cess, which was in the nature of piggy back duty on the excise duties under the said three Acts, was also required to be refunded, because it was not at all leviable, in view of the entitlement to exemption worked out under Paragraph 2 of the said Notification - appeal allowed.
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2007 (6) TMI 523
Validity of order passed by CBDT - Seeks declaration that payments towards voyage charter and time charter are not subject to deduction of tax at source u/s 194-I of the Income Tax Act, 1961 ("Act" ) - Central Board of Direct Taxes (CBDT) had neither put up their appearance nor filed any return or affidavit in reply disclosing their stand and chose to keep the representation made by petitioner No.1 pending without any decision thereon - HELD THAT:- It is difficult to understand whose contentions are addressed; whether that of the Income Tax Department or petitioner No.1- Association. No reasons are to be found in support of the approval accorded. It is further mentioned that in case of clarification the petitioners may contact the undersigned or CIT (TDS). Again one has to guess what one means by "undersigned". Whether Chairperson of CBDT or the Deputy Secretary (Budget), who has signed the order for Chairperson or CIT (TDS), who was one of the parties who had appeared before the CBDT to counter the contentions raised by petitioner No.1- Association. The representation of petitioner No.1- Association has been decided in a most casual manner without assigning any reasons whatsoever, as such alleged decision can hardly be said to be a legal and valid decision. The mode and manner in which the compliance of the order of this Court is made, it has become necessary for us to bring it to the notice of the CBDT through this order one of the judgments of the Apex Court in the case of East India Commercial Co.Ltd. v. Collector of Customs, Calcutta[1962 (5) TMI 23 - SUPREME COURT], which may serve as an eye-opener for them.
In the aforesaid backdrop, since the decision rendered by CBDT is not in accordance with the directions issued by this Court, and that, it is also in breach of the Law laid down by the Apex Court in Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another [1958 (11) TMI 28 - SUPREME COURT]; Ram Saran Das Kapur v. Commissioner of Income-tax, Patiala[1969 (3) TMI 24 - PUNJAB AND HARYANA HIGH COURT] and Krishna Swami v. Union of India and others [1992 (8) TMI 277 - SUPREME COURT]. we are left with no other alternative but to pass the following order:
(A) Issue notice returnable after three weeks to Smt.Indira Bhargav, Mumbai to show cause as to why suitable action should not be initiated against her, under the provisions of the Contempt of Court Act, for not following directions issued by this Court.
(B) Issue notice returnable after three weeks to the C.B.D.T. to show cause as to why their order not to be set aside pending disposal of the substantive petition as it is not in conformity with the order of this Court.
Petitioners undertake to serve notice. Hamdast allowed. Private service by R.P.A.D. with telegraphic intimation is also permitted.
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2007 (6) TMI 522
Powers to receive new/additional evidence for deciding the issue in terms of Rule 46A(4) - allowing additional evidence to be produce before CIT(A) for the first time - Addition u/s 68 of unexplained investment - failed to establish the genuineness of the loan transaction and creditors - HELD THAT:- In our opinion, there is no merit in this contention because Rule 46A(4) provides that notwithstanding Rule 46A(1), the appellate authority can permit production of documents which enable him to dispose of the appeal. In the facts of the case, the finding given by the Tribunal is that the documents produced were necessary for disposal of the appeal on merits and no question of law arises from such finding of fact recorded by the Tribunal.
Additional evidence permitted to be adduced, the Tribunal had deleted this addition and remanded the matter for fresh consideration. It is admitted by counsel on both sides that on remand the addition has been deleted by the lower authorities and the Revenue is in appeal before the Tribunal. Thus the dispute regarding deletion in the present appeal does not survive.
As the assessee has established that no loan is taken from Mr. Dandekar and in fact the assessee is liable to pay, Mr. Dandekar, the Tribunal was justified in deleting the said addition. Similarly, the assessee has established that the amount has in fact been paid towards stamp duty charges and, therefore, deletion of the said amount cannot be faulted.
Thus, we do not find any merit in the appeal and the same is hereby dismissed.
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2007 (6) TMI 521
... ... ... ... ..... light of the aforesaid observations of the Apex Court, the income received by the assessee by the investment of its funds in fixed deposits was income in his hands as the income from other sources. This could not be treated to be his income from business purposes. There is no material to show any direct nexus between the income earned and the payment of interest. Therefore, question No. 1 raised in the reference application of the revenue is answered in its favour. In view of the above discussion questions No. 1 and 2 raised by the assesssee in the reference filed by him are answered in favour of the Revenue and against the assessee. Question No. 1 raised in the reference application filed by the Revenue is answered in favour of the Revenue and against the assessee and question No. 2 is decided against the Revenue and in favour of the assessee. The reference is answered accordingly. The Registrar General is directed to send a copy of this judgment to the Income Tax Tribunal.
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2007 (6) TMI 520
Reduction of penalty - delay in payment of service tax repeatedly - Held that: - amnesty scheme was introduced in 2004 allowing the assessee to pay Service Tax along with interest and even though the amnesty scheme did not provide for non-imposition of penalty - penalty reduced.
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