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2007 (6) TMI 499
... ... ... ... ..... machinery falls under the category of motor vehicle as defined under sub-section (28) of section 2 of the Motor Vehicles Act, 1988. The petitioner shall make necessary arrangements for the physical examination of the machinery and upon physical examination, the respondent shall decide as per the terms of the Division Bench as to whether the vehicle would fall under the category of motor vehicles or not and pass appropriate orders. It is evident that the petitioner has offered his objections as early as on 2001 and the same has not been considered by the respondent in the proper perspective. Following the Division Bench judgment, the assessment order is set aside, the matter is remitted back to the respondent to proceed in accordance with law as per the directions contained earlier. The writ petition is disposed of accordingly. No costs. Consequently, connected M.P. No. 1 of 2007 is also closed. (1)Reoirted as RDS Projects Ltd. v. Commercial Tax Officer 2007 8 VST 574 (Mad).
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2007 (6) TMI 498
... ... ... ... ..... tion of the seized goods is reasonable and proper. And we don 39 t find any justification to interfere in this matter. The respondent No. 1 imposed penalty of Rs. 2,27,428 under section 71(1) of the Act which was reduced to Rs. 1,90,000 on revision. The reduced amount of penalty does not appear to us as excessive and high. We, therefore, confirm the amount of penalty. The respondent No. 1 has alleged in his affidavit-in-opposition that this Tribunal was pleased to pass interim order that the goods shall be released on furnishing security of Rs. 1.50 lakh, 50 per cent of which shall be in cash and another 50 per cent shall be in bank guarantee, but no such security money was deposited by the petitioner. Perhaps as because the petitioner is the custodian of the seized goods, he was not motivated to deposit the security money for release of the goods. In the result, the application is dismissed without any order as to the costs. SAIKH ABDUL MOTALEB (Judicial Member). - I agree.
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2007 (6) TMI 497
... ... ... ... ..... ms. However, we have already directed the concerned respondent authority to amend the registration certificate with effect from the date of granting the said certificate on the basis of the amendment petition filed on May 4, 2001. The petitioner 39 s application for declaration forms, if submitted after effecting amendment as directed, should be considered by the concerned authorities as per provision of the 1994 Act and Rules framed thereunder. Revision Case Nos. RN-478 of 2003 and RN-479 of 2003 relate to imposition of penalty under sections 78(1) and 77(1) of the 1994 Act. Since we have already directed to amend the registration certificate vide paragraph 12, the penalties as imposed are not sustainable. Hence all the orders relating to the imposition of penalty under sections 78(1) and 77(1) of the 1994 Act by CTO/LR, ACCT/CH and DCCT/CH are set aside. All four applications, thus, stand disposed of. No order as to costs. R.K. DUTTA CHAUDHURI (Judicial Member). - I agree.
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2007 (6) TMI 496
... ... ... ... ..... or his benefit. According to us there is no illegality or infirmity in giving an additional opportunity of hearing or showing cause. If the concerned dealer chooses not to respond to the notice and to appear before the concerned officer to place his answers or explanation the concerned officer will be free to proceed further in accordance with law and prescribed procedure, if any, for lodging complaint with the police. For the reasons aforesaid we do not find any illegality or infirmity in the impugned notice dated April 25, 2007. As already explained the petitioners may or may not appear before the concerned officer to avail of the opportunity provided to them. If the partners of the petitioner No. 2 firm do not respond to the notice or appear before the concerned officer the said officer will be at liberty to proceed further in accordance with law and the prescribed procedure, if any. The application is thus disposed of. DEB KUMAR CHAKRABORTI (Technical Member). - I agree.
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2007 (6) TMI 495
... ... ... ... ..... , in the said section it is made clear that levy of licence fee could only be if the sales turnover of the dealer exceeds five lakh rupees. Since the sales turnover of the dealer in the present case of cooked food, including coffee, tea, etc., is less than rupees five lakhs, the assessee cannot take recourse to the provisions of section 5B of the Act on those items which do not come under item 12 of the Third Schedule to the Act. Keeping that in view the assessing authority as well as the Tribunal have directed the assessee to pay tax under section 5(1) of the Act. This, in our opinion, is justified in view of what we have stated in the earlier paragraphs of our order. Accordingly, we are unable to accept the stand of the learned counsel for the assessee. Therefore, these revision petitions require to be rejected and they are rejected by confirming the orders passed by the Tribunal. Consequently C.M.P. Nos. 4576, 4578 and 4580 of 2002 are also dismissed. Ordered accordingly.
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2007 (6) TMI 494
... ... ... ... ..... udgments were rendered in different context altogether. In view of the above, in our view, the question of law that has been framed by the assessee requires to be answered in negative and in favour of the Revenue. Accordingly, the following ORDER - (i) The revision petitions are rejected. After rejection of the revision petitions, Sri Anil D. Nair, learned counsel appearing for the petitioner would submit that he may be permitted to question the legality or otherwise of the circular/directions issued by the Commissioner in Circular No. 16/98 dated May 28, 1998 in appropriate proceedings. In our opinion, if the request of the petitioner is granted, no prejudice will be caused to the Revenue. Therefore, while rejecting the revision petitions, liberty is given to the petitioner, if it so desires, to question the legality or otherwise of the circular/directions issued by the Commissioner in Circular No. 16/98 dated May 28, 1998 in an appropriate proceedings. Ordered accordingly.
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2007 (6) TMI 493
... ... ... ... ..... ing going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute 39 . In the instant case, in our opinion, the issue involved is covered by several decisions of this court and the Supreme Court and it has been consistently held that for the contravention of conditions of form XVII, tax and penalty can be imposed only against the purchasing dealer and not against the seller as per section 3(3) of the Act. Therefore, the impugned order passed by the assessing authority is clearly without jurisdiction. In the result, the writ appeal is allowed. The order of the learned single judge is set aside and the writ petition stands allowed. We make it clear that this judgment shall not preclude the assessing officer in redoing the assessment for the relevant period in accordance with law. No costs. Consequently, M.P. No. 1 of 2007 is closed.
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2007 (6) TMI 492
... ... ... ... ..... f the words including the provisions relating to in this sub-section and hence other powers not mentioned herein will also be available to the authorities. The State has empowered the Commissioner to issue appropriate circulars to maintain uniformity in the procedure for the purpose of quantification of tax and also in the procedure for levying tax on certain transactions. By virtue of the powers given to the State authorities under sub-section (2) of section 9 of the CST Act, the Commissioner, in exercise of his powers, has issued the circular dated April 19, 2006. In view of the above, we are of the opinion that the Commissioner is empowered under the CST Act to issue such circular. In view of the above, we do not see any merit in the contentions canvassed by the learned counsel for the assessee. Accordingly, the appeal requires to be rejected and it is rejected. In the facts and circumstances of the cases, parties are directed to bear their own costs. Ordered accordingly.
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2007 (6) TMI 491
... ... ... ... ..... undisputedly within the legislative competence of the State and it is only the effect of levy of tax that is sought to be used to attribute either lack of legislative competence or unconstitutionality through the device of colourable exercise of power, I am unable to accept the argument that the provision should be struck down as unconstitutional. The provision being a direct provision for levy of tax in respect of sale transaction, etc., it cannot be held either as though it is one beyond the legislative competence or unconstitutional. In the light of the above position, the provision cannot be held to be discriminatory just because the petitioner is the only taxpayer, who becomes liable to pay tax. Therefore, it cannot be accepted that the levy in terms of the amended provisions which is challenged in this writ petition is unconstitutional either on the ground of lack of legislative competence or on the ground of discrimination. Accordingly this writ petition is dismissed.
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2007 (6) TMI 490
... ... ... ... ..... eard before fixing the amount of additional security - that he must be given an opportunity of being heard. The principles embedded in the statute have not been followed by the respondent before cancelling the licence or registration issued by the competent authority. Apparently, the respondent has failed to adhere the statutory provisions and cancelled the licence. Therefore, the impugned order is liable to be set aside and accordingly set aside. The matter is remanded back to the respondent for fresh consideration on merits. The petitioner shall be given 15 days time to submit his objections to prove his case and on receipt of the objections, personal hearing as contemplated under section 39(5), (14) and (15) of the Act shall be given to the petitioner and thereafter the respondent shall pass appropriate orders within a period of 15 days in accordance with law. With the above direction, the writ petition is disposed of. Consequently, M.P. No. 1 of 2007 is closed. No costs.
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2007 (6) TMI 489
... ... ... ... ..... paid, i.e., the premises are given out free of cost to hold such function, there would be no service tax liability. As regards Kannada film shooting and political meetings, it is very clear that they cannot be considered as social functions. Therefore, such instances have to be excluded from the levy of service tax in the category of mandap keepers. Both the appellants have urged that the invocation of longer period is not justified, as they were under the bona fide impression that their activities would not come within the purview of service tax under the category of mandap keeper. We are in agreement with the contention of the appellants. Therefore, the demand will be restricted to the normal period. As the issue involves question of interpretation of law, no penalty is warranted. We set aside the penalties. The appeals are allowed partially in the above terms. We uphold the levy of service tax on the appellants. However, the demand will be restricted to the normal period.
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2007 (6) TMI 488
... ... ... ... ..... ice Tax and also to submit complete details of the Commission received. The assessee vide letter No. APPL/July/05-06 received in the Range Office on 26-7-2005, submitted the copies of debit notes dated 7-7-2004 raised against M/s. British Electric Manufacturing Co., 31, Ezra Street, Kolkatta and M/s. Component Engineers, 32, Ezra Street, Kolkatta for recovery of Commission of Rs. 8,00,000/-and Rs. 5,15,057/- respectively. The assessee vide their letter dated 13-8-2005 further submitted that the Commission of Rs. 7,58,180/- and 4,88,132/- was received vides DD No. 586351 dated 3-3-2005 and DD No. 586361 dated 10-3-2005 respectively after deduction of TDS. 6. emsp The finding in the impugned order that period of service is not known is contrary to the facts on record. Clearly, service was rendered before the imposition of the levy. Therefore, the demand is not sustainable. 7. emsp Impugned order is set aside and the appeal is allowed. (Dictated and pronounced in the open Court)
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2007 (6) TMI 487
... ... ... ... ..... he amount of interest as ordered aforesaid within 15 days of receipt of this order and communicate it to the applicant, who thereupon shall pay it within the next 15 days. The applicant shall furnish proof of payment of interest, both to the Commission and the Revenue. Penalty Penalty of Rs. 5,00,000/- (Rupees five lakhs) is imposed on the applicant. Immunity towards penalty is granted to the co-applicants. Prosecution Immunity from prosecution is also granted to the applicant and the co-applicants from prosecution under the Central Excise Act, 1944. 30. The above immunities are granted under sub Section (1) of Section 32K of the Act. Attention of the applicant is also drawn to the provisions of sub Section (2) and (3) ibid. 31. This order of settlement shall be void in terms of sub Section (9) of Section 32F of the Act if the Settlement Commission subsequently finds that it has been obtained by fraud or misrepresentation of facts. 32. All concerned are informed accordingly.
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2007 (6) TMI 486
... ... ... ... ..... on 158BD has been issued on March 5, 2004. Thus, the sum of Rs. 20 lakhs was available for adjustment against the tax to be determined in respect of undisclosed income. Tax determined on the basis of block assessment is only Rs. 14,10,000. Hence, tax deposited in the year 2002 is much more than the tax determined in block assessment, the proceedings for which, assessment was initiated on March 5, 2004. Hence, interest is not leviable under section 158BFA(1). In case, the Assessing Officer has given credit of Rs. 20 lakhs against tax determined for the assessment year 2002-03, then the Assessing Officer will give an opportunity to the assessee to ascertain as to whether the credit of Rs. 20 lakhs is to be given. Apparently, the sum has been paid in the form of pay order to the Deputy Director of Income-tax and it shows that it was to be adjusted against tax on undisclosed income. With these directions, this ground of appeal is disposed of. In the result, the appeal is allowed.
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2007 (6) TMI 485
... ... ... ... ..... with the agents or suppliers. Therefore, in our considered view, the Commissioner of Income-tax (Appeals) was justified in holding that the provisions of section 194C are not applicable on the facts of the present case. The decision relied upon by learned counsel for the assessee is also in favour of the assessee. We have seen the detailed submissions filed on behalf of the assessee before the learned Commissioner of Income-tax (Appeals) as the same has been reproduced by the learned Commissioner of Income-tax (Appeals) in his order and found that the assessee has clarified each and every point and have met with the objections raised by the Assessing Officer successfully. Therefore, after considering the detailed submissions, and other materials on record, we confirm the findings of the learned Commissioner of Income-tax (Appeals). In the result, the appeal filed by the Department is dismissed. Order pronounced in the open court on the date of hearing i.e., on June 27, 2007.
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2007 (6) TMI 484
Deduction u/s 80IA of the Income Tax Act – inclusion of duty draw back – Held that:- Scheme of duty drawback is framed and embodied in the statutory provisions in order to relieve the goods to be exported of the burden of customs duties and excise duties - As customs duties and excise duties are admittedly an integral part of the cost of production, and therefore, any receipts by way of reimbursement of such duties is inextricably linked with the cost of production which has to be reflected in P & L A/c of the assessee - Duty drawback is "derived from" the industrial undertaking and, therefore, eligible for relief - in favour of the assessee
Decision in the matter of CIT v. India Gelatin & Chemicals Ltd. [2004 (4) TMI 20 - GUJARAT HIGH COURT] followed.
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2007 (6) TMI 483
Valuation - Captive consumption ... ... ... ... ..... s, 1975. On the other hand, it is the appellant rsquo s contention that though the said rule is applicable, the same allows for certain adjustment to be made. In as much as the goods cleared by them from the factory involved the cost of the packing, transportation, loading and unloading, labour charges etc., the said elements are required to be deducted from the sale price so as to correctly arrive at the value of the captively consumed yarn. 2. emsp After hearing both the sides, we find that an identical issue was considered by the Tribunal in case of Reliance Industries Ltd. v. CCE, Mumbai reported in 2001 (131) E.L.T. 237 (Tri.-Mumbai), wherein it was held, that the expenses incurred on account of packing in respect of the cleared goods are not includible in the assessable value of the captively consumed goods. By following the ratio of the above decision, we set aside the impugned order and allow the appeal with consequential relief to the appellant. (Pronounced in Court)
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2007 (6) TMI 482
Confiscation and penalty - Man-made fabrics, notified goods ... ... ... ... ..... Tribunal s decision in case of Agha Khan as relied upon by the appellant is not applicable to the facts of instant case in as much as the appellant in that case had produced on record the copies of the invoices issued by the firm from whom he had purchased the fabric. In the instant case, no purchase documents have been produced on record by the appellant. As such, I am of the view that the confiscation of the goods and imposition of penalty is in accordance with the law. However, keeping in view that there is no charge on the appellant having himself smuggled the goods and keeping in view the value of the goods, I reduce the redemption fine to Rs. 50,000/- (Rs. Fifty Thousands only) and penalty on the firm to Rs. 25,000/- (Rs. Twenty five thousands only). There is no justification for imposition of separate penalty of Rs. 25,000/- on Shri Bajaj. The same is, accordingly, set aside. 6. emsp Both the appeals are disposed off in above manner. (Pronounced in Court on 15-6-2007)
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2007 (6) TMI 481
Penalty on Captain and other appellant - Import without licence - Held that: - the vessel arrived at Kandla on 30-8-99 and was put to search from 31-8-99. As per the provisions of law, the period of 24 hours was available to the Captain for making declaration, which period was net expired by the time of the visit of officers. As such, no serious charge can be framed against the Captain for not making the declaration. Accordingly, I do not find any reason for imposition of penalty upon the Captain and other appellants - appeal allowed.
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2007 (6) TMI 480
Demand, redemption fine and penalty ... ... ... ... ..... er on the point of setting aside of penalty and reducing the redemption fine. 5. emsp However, I find that the appellate authority has given a categorical finding that there is nothing on record to show that the seized goods were imported yarn. The Revenue, in their appeal memo, have not assailed the above finding of the appellate authority. If that be so, no duty can be confirmed against the respondent, by treating the goods as being of foreign region and of smuggle character. The appellate authority has rightly set aside the duty in respect of the goods and consequent setting aside of penalty is also justified. The goods stands confiscated not on the ground of being smuggled, but on the ground of procedural contravention inasmuch as, the same were found unaccounted in the 100 EOU. For the said reasons, redemption fine of Rs. 20,000/- is justified. As such, no merits are found in the Revenue rsquo s appeal. The same is accordingly rejected. (Dictated and Pronounced in Court)
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