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Case Laws
Showing 161 to 180 of 707 Records
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2008 (3) TMI 625 - ALLAHABAD HIGH COURT
Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified in validating the initiation of proceeding under section 21?
Whether there was any material to justify the initiation of proceeding under section 21 on March 4, 1991?
Whether the initiation of proceeding under section 21 was based on any material and inasmuch as in any case, on account of change of opinion?
Whether the levy of tax under section 21 on spent earth as unclassified items is based on any relevant material, on account of change of opinion?
Whether the spent earth is liable to tax as a mineral or as an unclassified items?
Held that:- In the present case as has been held above, "spent bleaching earth" does not remain a mineral as it has lost its originality as excavated and also its physical properties have changed and therefore the view taken by the Tribunal appears to be correct. No question of law as such arises warranting interference in revisional jurisdiction.
Revision lacks merit and it is according dismissed.
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2008 (3) TMI 624 - SUPREME COURT
Why the parties entered into a settlement is not a matter for our consideration. We are merely suggesting that such settlement was permissible in law. Ex-facie, it does not violate any public policy and not otherwise inequitable.
No case has been made out for interference with the impugned judgment. The appeal is dismissed accordingly. However, the appellant shall be at liberty to approach the concerned Bar Council or file an appropriate action against the lawyer concerned.
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2008 (3) TMI 623 - SUPREME COURT
Order of detention set aside - Held that:- Appeal allowed. The case on hand, in our considered opinion, does not fall within the category of exceptional cases and the High Court committed an error of law in setting aside the order of detention at the pre-execution and pre-arrest stage. The said order, therefore, deserves to be set aside and is hereby set aside. It is open to the authorities to execute the order of detention. It is equally open to the detenu to challenge the legality thereof on all available grounds.
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2008 (3) TMI 622 - CENTRAL INFORMATION COMMISSION
... ...
... ... ..... the Commission the KVS circular dated 17-2-1972 wherein it was stated that the Assistant Commissioners, Principals and Regional Office staff except Class IV employees in the regional offices were required to submit Annual Property Returns. According to this circular, obviously Group lsquo C rsquo employees would be included in the category of those employees who are required to file Property Returns. However, the Respondents brought to the notice of the Commission the Government Conduct Rules and pointed to Rule 18 which through Note-3(ii) laid down that ldquo every Government servant belonging to any service or holding any post included in Group lsquo A rsquo and Group lsquo B rsquo shall submit an annual return in such form as may be prescribed by the Government. rdquo The Commission accepted the submission of the Respondents and since this these documents are, anyway, not on record, there is no question of providing copies of these. 10. The Commission ordered accordingly.
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2008 (3) TMI 621 - ITAT MUMBAI
... ...
... ... ..... nts under the signature of the assessee himself. The fact that the assessee did not have liquid assets and therefore, he has requested for auction of the seized jewellery, is not disputed by the Revenue. In these facts of the case, we hold that the conditions of the provision of Explanation 5 to section 271(1)(c) of the Act are satisfied in this case. The very basis of imposition of penalty is the amount offered by the assessee as additional income for the year under consideration by the assessee itself. In these facts of the case, we hold that no case of imposition of penalty for concealment of income or filing inaccurate particulars of income under section 271(1)(c) of the Act is made out by the Department and accordingly the penalty imposed under section 271(1)(c) is cancelled and the grounds of appeal of the assessee are allowed. In the result, the appeal of the assessee is allowed. The order pronounced in the open court at the time of hearing the appeal on March 5, 2008.
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2008 (3) TMI 620 - ITAT MUMBAI
... ...
... ... ..... Act. The provisions of section 10(3) cannot be invoked for charging any income to tax as section 10 deals with only such income, which are not to be included in the total income of the assessee. In view thereof, we direct the Assessing Officer not to include the said sum of Rs. 2.45 crores as income of the assessee which in turn were utilized to repay the obligations due to the Bank of America on account of loan taken for the purpose of business and the said amount was credited to the capital reserve account being the contribution made by the shareholder for repaying its liabilities in order to fulfil its guarantee obligations. The said income is not taxable under section 10 of the Act. Accordingly, the grounds of appeal raised by the assessee are allowed and the grounds of appeal raised by the Revenue are dismissed. In the result, the appeal filed by the assessee is allowed and the appeal filed by the Revenue is dismissed. The order pronounced on the 31st day of March, 2008.
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2008 (3) TMI 619 - DELHI HIGH COURT
Deduction of tax at source - Contractors/sub-contractors, payments to - Whether since contract was actually between exporter and airline and assessee was only an intermediary, it was not a ‘person responsible’ for deduction of tax at source in terms of section 194C
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2008 (3) TMI 618 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Manufacture ... ... ... ... ..... regated scrap is being exported. The appellants are covered under 100 EOU scheme, however, the revenue contended that the activity undertaken by the appellant would not amount to manufacture. Consequently, proceedings were initiated and dues have been demanded. In this connection, the learned advocate directed our attention to Board rsquo s Circular dated 6-5-1997 wherein it has been clearly clarified that the term lsquo manufacture rsquo for the purposes of export is wider in meaning than that used in the Section 2(f) of the Central Excise Act, 1944. Prima facie, we find that the appellants have strong case on merits in their favour. In view of this, we order total waiver of the pre-deposit of the dues demanded in the impugned order. No coercive measure shall be taken till the disposal of the appeal. Stay order to continue even after expiry of 180 days in terms of several judgments. Appeal to come up for final hearing on 25th May 2009. (Pronounced and dictated in open Court)
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2008 (3) TMI 617 - CESTAT, AHMEDABAD
Compounded Levy Scheme - Annual Capacity of Production ... ... ... ... ..... whereas the same stand confirmed by Dy. Commissioner under Rule 96ZP. As such, he has observed that the impugned order had travelled beyond the show cause notice. 5. emsp After going through the show cause notice, we find that the notice proposed recovery invoking provisions of Section 3A on the ground that the appellant has not discharged their duty liability in terms of ACP fixed by the Commissioner. As such, all the allegations made against the assessee were clearly spelt out in the show cause notice and it is not a case where two different and distinct provisions of law stands invoked in the notice and the order so as to hold that the order has travelled beyond the show cause notice. We fully agree with the learned JDR that the setting aside the demand on the above technical ground was not warranted. 6. emsp We, accordingly, allow the present appeal of the Revenue and remand the matter to the Commissioner (Appeals) for decision on merit. (Pronounced in Court on 11-3-2008)
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2008 (3) TMI 616 - CENTRAL INFORMATION COMMISSION
Right to Information - Vigilance proceedings ... ... ... ... ..... t part of the information which might relate to the sources of information provided to the public authority for the purposes of law enforcement and thus would attract Section 8(1)(g) of RTI Act. It won rsquo t be proper to withhold the entire file from disclosure simply because a part of it could attract any of the exemption sub-sections of Section 8(1) of RTI Act, and especially so when the investigation is over. 9. emsp In view of the above and given the specific circumstances of this case it is directed that the respondent shall allow the appellant to inspect the file No. 03/EZU/Vig/2002. Respondents shall be authorized to withhold from disclosure all such information contained in the file which would attract the exemption under Section 8(1)(g) or any other exemption sub-section of Section 8(1) of RTI Act. This will be done within two weeks from the date of the receipt of this order, if not already done by the respondents. 10. emsp Appeal disposed of with these directions.
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2008 (3) TMI 614 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... in accordance with the relevant provisions of the FTDR Act. So long as that is not done, a licence issued by the licensing authority continues to be valid and enforceable. The jurisdiction of the Customs authorities is confined to seeing whether the goods under import are covered by the licence in terms of description, value and other conditions of the licence. The Commissioner has not disputed that the materials imported by the Applicants are covered by the licences issued by the DGFT. 5. emsp We find that the applicants have prima facie made out a strong case for the complete waiver of the pre-deposit of the duty demanded and the penalties imposed. We accordingly dispense with the pre-deposit of the duty and the penalties imposed pending disposal of the appeals. Since the revenue involved in this case is more than Rs. 10 crores, the Registry is directed to fix this case for regular hearing in the month of April, 2008. Ordered accordingly. (Pronounced in court on 10-3-2008)
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2008 (3) TMI 612 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
Demand - Short-payment ... ... ... ... ..... cussed the formula regarding the Temperature Variation Allowance (TVA). I find that Board vide Circular No. 778/11/2004-CX dated 11-3-2004 has directed the field formations to adopt the new ASTM table 53B for Volume Reduction Factor for Mineral Oils so as to reduce the volume at 15 degree C. This is in the shape of a ready recknor for volume reduction and there was no need to discuss its details in the impugned order. As regards the reduction in price of the goods allowed to the respondents by IOC in their sale invoices, this is in relation to volume reduction factor when the volume is calculated at 15 degree C. Though as a result of this reduction, the quantity in terms of its volume changes but there is no change in quantity in the absolute terms. The recalculated volume as a result of the reduction factor does not lead to any transit loss of goods. In view of the above I do not find any infirmity in the impugned order which is accordingly upheld. The appeals are dismissed.
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2008 (3) TMI 611 - CESTAT, MUMBAI
Penalty - Cenvat/Modvat - Documents for availing credit ... ... ... ... ..... es only. In case for some reason duplicate invoice is lost there is a procedure prescribed for availing credit on the basis of original invoice which procedure admittedly was not followed. Since duplicate invoices are capable of being utilized by some other persons for availing credit, the credit cannot be extended on original invoices even if receipt of inputs by the dealer is not disputed. I further notice that this was not a stray incident as according to the appellant himself such mistake in the past also occurred wherein a lenient view has been taken. In the present case since the offence is of repeated nature I feel a penalty is required to be imposed. However, the penalty imposed is rather harsh and it is equivalent to credit taken by them. I further find that 50 of penalty amounting to Rs. 1,07,639/- has already been deposited by them. I consider this as sufficient and set aside the balance amount of penalty imposed. The appeal thus partly allowed. (Dictated in Court)
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2008 (3) TMI 610 - CESTAT, AHMEDABAD
Refund of pre-deposit ... ... ... ... ..... Deputy Commissioner made a mistake in allowing the amount of Rs. 59,866/- as Cenvat credit in their Cenvat account even though the payment of predeposit of Rs. 2 lakhs was made by debiting in the PLA. 3. emsp I find nothing wrong in orders passed by the Deputy Commissioner or Commissioner (Appeals) as regards the adjustment since at that point of time, there was no stay against the recovery of the confirmed demand of Rs. 1,40,l,34/-. The proper course for the appellant was to file a fresh refund claim as soon as the order of the Tribunal No. A/2290 to 2321/WZB/Ahd/2007, dated 29-8-07 was received by them to the Deputy Commissioner. I also observe that allowing Rs. 59,866/- as credit in Cenvat credit account when the payment was made by debiting in their PLA as also not correct. 4. emsp Accordingly, the appeal is rejected in view of the above discussion and the appellants are directed to pursue the issue by filing fresh refund claim. (Dictated and pronounced in the open Court)
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2008 (3) TMI 609 - CESTAT, AHMEDABAD
Rectification of mistake ... ... ... ... ..... ing come in existence in September, 1996. Reliance is placed upon the Hon rsquo ble Supreme Court decision in case of CCE v. Elgi Equipments, 2001 (128) E.L.T. 52 (S.C.). 3. emsp The Hon rsquo ble Supreme Court in the said decision has held that illegality committed prior to insertion of Section 11AC in the Act, cannot be the subject matter of penalty under the said provision. We find that the adjudicating authority has specifically dropped the penalty under Section 173Q and imposed penalty under Section 11AC. By applying the ratio of above decision of the Hon rsquo ble Supreme Court, penalty under Section 11AC could not have been imposed. As such, we modify the Tribunal rsquo s Para 4 as under ldquo In view of the fact that the period involved is from 1992-93, when the Section 11AC was not under the Statutory Book, we set aside the personal penalty imposed under the said Section. rdquo 4. emsp ROM application is disposed off in above terms. (Dictated and pronounced in Court)
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2008 (3) TMI 608 - CESTAT, NEW DELHI
Penalty - Import of adulterated oil ... ... ... ... ..... melting point being 40 deg C. Hence the appellants are not liable for any penalty, the penalty is set aside. Otherwise, the impugned order is upheld. M/s. Sheel Agro Oils P. Ltd. filed the appeal against the said decision of the Tribunal and the Hon rsquo ble Delhi High Court dismissed their appeal. 6. emsp In view of the above decision I find no infirmity in the impugned order whereby imported vanaspati oil, was confiscated. 7. emsp The appellants submitted that in the case of Sheel Chand Agro Oils P. Ltd. (supra) the Tribunal set aside the penalty. I find that in that case the Tribunal after considering the test report supplied by the exporter showing melting point of vanaspati oil as 40 deg C set aside the penalty, but in the present case there is no such report. It is the quality certificate which simply shows 40 Max., hence, the imposition of penalty is justified. I find no infirmity in the impugned order. Appeal is dismissed. (Dictated and pronounced in the Open Court)
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2008 (3) TMI 607 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Security in lieu of pre-deposit ... ... ... ... ..... We sought for the comments of the jurisdictional Commissioner and the ld. DR submits a communication from the Jt. Commissioner, wherein it has been submitted that ldquo the machinery ... are invariably hypotheticated to banks/financial institution rdquo and that ldquo the certificate issued by valuer is not acceptable rdquo . It was pleaded that deposit of 50 of duty confirmed as ordered by the CESTAT in its order dt. 16-9-2005 should be insisted upon. 3. emsp Hon rsquo ble Supreme Court has directed that security should be sufficient in lieu of amount ordered to be deposited by the Tribunal. Therefore there is no question ordering any cash deposit. The submissions on behalf of the Commissioner for non-acceptance of the property as security are not acceptable to us. Therefore, we accept the security furnished by the applicant in the form of plant and machinery. We also deem it proper to post the appeal itself for final disposal on 24-4-2008. (Dictated and Pronounced in Court)
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2008 (3) TMI 606 - KERALA HIGH COURT
Writ jurisdiction - Alternative remedy ... ... ... ... ..... appeal. I have gone through the said judgment and in my understanding, that judgment does not lay down any general proposition that in all cases where a contention of time bar is raised, alternate remedy of appeal need not be pursued. On facts, it can be seen that in the above case the Apex Court was dealing with a case where demand was made after 16 years and as stated in para 3 thereof, relief was granted in the special facts of that case. Further, unlike that case, petitioner does not have to deposit the amount demanded for filing the appeal. On the other hand, the appellate authorities empowered to grant stay. For these reasons, I cannot accept this judgment as one supporting the contention of the petitioner. The other contentions raised are all on the merits, which, in my view, are to becanvassed before the appellate authority. Therefore, leaving open all contentions, I dismiss this writ petition, without prejudice to the right of the petitioner to file statutory appeal.
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2008 (3) TMI 605 - CESTAT, AHMEDABAD
... ...
... ... ..... Accordingly, I set aside the order and allow the appeal. rdquo 2. emsp Revenue in their memo of appeal, have not contested that the country of origin was different, but has simply stated that country of origin in the contemporaneous invoice was neighbouring country and the Revenue has a reasonable belief that the price declared by the respondent was much low. We do not agree with the above contention of the Revenue. The price of the goods is not depending upon the distance between the two countries of origin, but is depending upon the quality of the product. The goods, in the present case, have been imported from Laos, whereas the Revenue has sought to enhance the price on the basis of import from Thailand. The fact that Laos and Thailand are neighbouring contries, will not be sufficient to hold that the import from Thailand is contemporaneous import, so as to adopt the higher value. 3. emsp Revenue rsquo s appeal is, accordingly, rejected. (Dictated. and pronounced in Court)
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2008 (3) TMI 604 - CESTAT, BANGALORE
Quantum of Redemption fine and penalty - Import of second hand photocopier - Held that: - the value declared by the appellant has already been enhanced by the Revenue on the basis of the Chartered Engineer’s certificate. It is seen that there is no evidence brought out by the revenue to show that the appellants had paid more than what he had declared to the customs. Therefore, in such circumstances, the Tribunal took a view to impose fine and penalty at 10% and 5% in many of the cases cited by the appellant. As this Bench cannot deviate from the ratio of its own decision, we find that in all these cases the fine and penalty should be fixed only at 10% and 5% of the value of the imported goods determined by the Chartered Engineer, respectively
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