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Case Laws
Showing 381 to 400 of 1232 Records
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2012 (9) TMI 862
Qauntification of penalty - Enhancement of penalty - Held that:- Revenue in their memo of appeal advanced no reasonable ground to enhance the penalty of Rs. 5,000/- per transaction. There is no such provision of imposition of penalty either on transaction-wise or on manufacture-wise basis - Decided against Revenue.
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2012 (9) TMI 861
Waiver of pre-deposit of duty - Availment of CENVAT Credit on the invoices which were raised for discharge of Service Tax liability on renting of immovable property - Held that:- There is no dispute that the appellant has received the services under the category of renting of immovable property. It is also not in dispute that the appellant has got the duty paying documents indicating the discharge of Service Tax liability by the service provider under the category of renting of immovable property. It is also not in dispute that the said properties were used by the appellant for his business activities. All these three factual aspects having not been denied, the availment of Cenvat credit of the Service Tax paid by the second appellant cannot be faulted as he is eligible to avail Cenvat credit - appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved in these cases. Accordingly, the applications for waiver of pre-deposit of balance amounts involved are allowed and recovery thereof stayed till the disposal of appeals - Stay granted.
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2012 (9) TMI 860
Waiver of pre deposit - appellants are invoicing to HPCL and pay applicable sales tax/VAT - Held that:- No doubt the margin available to HPCL has been referred to as ‘commission’ in the agreement. However, the records reveal that it is clearly a case of sale by the appellant to HPCL, who in turn sells the products to various customers. Further applicable sales tax/VAT has been paid on such sales. Under these circumstances, to include the so-called ‘commission’ in the assessable value would lead to treating the HPCL as related person which is beyond the scope of show cause notice - we waive pre-deposit of balance amount of dues as per the impugned order and stay recovery thereof till the disposal of the appeal - Stay granted.
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2012 (9) TMI 859
CENVAT Credit - appellant is procuring and selling ingots in the market without passing on the Cenvat credit of duty to its customers - Held that:- there is no evidence indicating that the manufacturer had cleared the goods at the instance of the appellant. The appellant is only a buyer of ingots and had admittedly issued ST-31. The statements of driver and the owner in respect of past transactions are evidences in the nature of co-accused’s statement and cannot be given precedence over the appellant’s own statement. As such in the absence of any evidence and in view of the fact of issuance of ST Form, I am of the view that the Revenue has failed to make out a case so as to impose penalty upon the present appellant. In view of the foregoing, the impugned order is set aside - Decided in favour of assessee.
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2012 (9) TMI 858
Penalty - Whether in a process involving heating/melting, there can be a process-loss or not, especially when the raw material is a scrap - Held that:- I am not aware of any technology available at present which eliminates process-loss. In any manufacturing activity, process-loss occur and so long as the losses are within reasonable limits they have to be permitted. In the case before me, the loss is only to the extent of 5.4% which is very reasonable and, therefore, it cannot be held that there was any unreasonable loss. Further, the department has not adduced any evidence whatsoever to show that the appellant diverted a part of the material for some other purpose. In the absence of such evidence, the action on the part of the department in imposing a penalty, that too on alleged ground of suppression, is bad in law - Decided in favour of assessee.
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2012 (9) TMI 857
CENVAT Credit - Instead of availing 50% of cenvat credit on the capital goods received in the year, appellant has availed 100% cenvat credit during the three financial years 2005-06, 2006-07 and 2007-08 - Held that:- There was no need for demanding the wrong credit taken in this case instead the appellant could have been asked to work out the eligible amount of credit in each year and pay interest for the inadmissible credit availed by them. The offer made by the learned advocate to recalculate the credit admissible and to work out the amount of interest payable, is fair and acceptable - Accordingly, the demand for cenvat credit is set-aside and appellant is directed to calculate the credit admissible year-wise and interest payable by them and pay the same within sixty days from the date of receipt of this order and report compliance to the jurisdictional Central Excise office - Decided in favour of assessee.
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2012 (9) TMI 856
Waiver of pre deposit - Availment of CENVAT Credit - Inputs were sent by the appellants directly to the job worker’s premises without bringing the same first to their factory - Held that:- inputs, in question, were directly sent by the appellant to the job worker without first receiving the same in their factory. Rule 3(1) permits availment of credit by a manufacturer even if inputs, in respect of which credit had been availed, had been sent to the job worker for processing. In this case, we find there is no allegation of the department that the inputs received by the job worker, instead of being used for intended purpose, had been illicitly diverted. On perusal of Rule 4(6), we are of the prima facie view, that for availment of the facility to clear the finished goods from the job worker’s premises, it is not necessary that the inputs must be sent by the manufacturer from his factory - Prima facie case in favour of assessee - Stay granted.
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2012 (9) TMI 855
Valuation of goods - non-inclusion of the value of the packaging material i.e. cylinders received from the purchaser of the appellants final product - Held that:- The excisable commodity was liquid chlorine which was sold by the assessee in tonners supplied by buyers. The buyers were not related to the assessee, nor had the Revenue a case that the price was not the sole consideration for the sale. On these facts, no amount attributable to the value of the tonners was held to be includible in the assessable value of the excisable goods. We have not found any factual difference in the present case. The buyers were not alleged be affected by any extra-commercial consideration. Hence the value of the cylinders owned by the buyers was not includible in the assessable value of liquid Sulphur di-oxide - Following decision of Grasim Industries v. CCE, Indore [2003 (12) TMI 101 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2012 (9) TMI 854
Waiver of pre-deposit of duty - Equal amount of penalty under Section 11AC read with Rule 15 of Cenvat Credit Rules - Held that:- A perusal of the Rule 2(a) makes it very clear though storage tanks may be immovable property and pollution control equipment are included within the definition of “capital goods”, input as defined in Rule 2(k) makes it clear that “input” includes in goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. Therefore, the input is not necessarily to be used in the manufacture of final product. By virtue of explanation 2 - goods used in the manufacturer of capital goods which are further used in the factory of the manufacture also falls within the definition of input - applicants are able to make out a prima facie case for total waiver of service tax which is waived and recovery thereof is stayed during pendency of the appeal - Following decision of COMMISSIONER OF CENTRAL EXCISE, BANGALORE-II Versus SLR STEELS LTD. [2012 (9) TMI 169 - KARNATAKA HIGH COURT ] - Stay granted.
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2012 (9) TMI 853
Challenge the functioning of the Appellate Tribunal VAT - that after two members heard the case substantially (in the absence of the third member, who had proceeded on leave) and closed hearings on its behalf, the third member sought join the bench and participate in the proceedings - Held that:- VAT Tribunal in the present case; it is a statutory tribunal, tasked with deciding appeals preferred by aggrieved parties against decisions of VAT adjudicatory authorities. Its membership comprises of those who hold or are entitled to hold judicial office; there are Administrative members too. There is a certain formality in the procedure it has to adopt, or follow - A basic component of fair hearing is that a man likely to be affected by a decision, should be heard by an unbiased or impartial tribunal or authority. The corollary to this – and perhaps equally so, is that the officer, or authority who hears the litigant or individual, should issue the order.
In view of the above discussion, this Court hereby directs the Delhi VAT Tribunal to forbear hearing of Appeal in the composition it had on 29-8-2012 and 7-9-2012, and continue the hearing with the two members (i.e. the Chairman and Mr. D.C. Anand) according to its previous composition, when the matter was part heard, and the petitioner’s arguments had been concluded, on 27-8-2012. It is clarified that Ms. Nita Bali, Member (Administrative) shall not participate in the proceedings and she is however entitled to sit and hear all other cases in which she was a participant, either before her leave of absence, or after her re-joining the Tribunal, except in part heard cases or appeals, like in the present instance. The Tribunal shall take up the Petitioner’s appeals, subject to the above directions, at its utmost expedience, and decide its merits - Petition allowed.
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2012 (9) TMI 852
Application for waiver of pre-deposit of the amount of service tax, interest and penalties - applicant is a statutory corporation established by the Maharashtra State Government - Revenue issued a show cause notice demanding service tax on the ground that the applicant was providing maintenance and repair service which is taxable - Held that:- As per the Board's circular No.89/7/2006 dated 18.12.2006 that activities performed by a public authority under the provisions of law are not taxable under the Service Tax. Since applicant is a public authority hence pre-deposit of service tax, interest and penalties is waived and recovery of the same is stayed - Decided in favor of applicant
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2012 (9) TMI 851
Construction of residential complexes on own land and sale thereof of residential units - non-payment of service tax on ground that building was being constructed on their own land - Revenue contended that though the sale of the flats took place after completion, the respondents had taken advances from the respective buyers, hence it fall under "Construction of complex" u/s 65(105)(zzzh) of Finance Act, 1994 - assessee placing reliance on circular No. 332/35/2006-TRU and No. 19/7/07-ST issued by CBEC clarifying that when flats were constructed on the land belonging to a builder and flats are sold after completion of construction, no service tax will be leviable - period 16.6.05 to 25.3.06 - Held that:- High Court in case of Magus Construction Pvt Ltd. vs UOI (2008 (5) TMI 18 - HIGH COURT OF GAUHATI) held that department is binding by the circular issued by Board and hence activity in question is not subject to service tax. In view of aforesaid, during the impugned period, the activity in question could not be considered as service and subjected to service tax - Decided in favor of assessee.
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2012 (9) TMI 850
Levying and demanding service tax in respect of activities undertaken by the members of Association at port - Held that:- With respect to the members of the petitioner-Association who are engaged in repair of work of vessels, in our opinion, the authorities are justified in insisting that they must register themselves and also pay service tax as may be payable. With respect to those members who do not provide any such repair work, but provide exclusively the provisions to crew and for the utility of the vessel, we are of the opinion that material is scanty for us to express any opinion thereon.
Any service rendered by a port or other port or any person authorized by such port or other port. The section does not provide that the authorization that may be granted by the port must be of such service which the port as exclusively obliged to undertake, under the statute. Association only wrote a small letter in the nature of representation requesting to drop the demand for registration. Before HC, except singular document showing the trade license issued by the port authorities in favour of one of the ship chandlers, no further evidence or material is produced to demonstrate the nature of activities carried on by such members. It would, therefore, be hazardous to express any legal opinion on the basis of such scanty material. Therefore Petition stands dismissed.
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2012 (9) TMI 849
Excise duty burden - initially the bids always included Excise Duty to be borne by HCL whereas the Work Order suggest Excise Duty to be borne by the appellant - Held that:- When the price was negotiated and terms were fixed through negotiation, the final contract that was entered into would be the final important document to be looked at, that did not specifically provide, HCL would bear the Excise Duty. The notice inviting tender also did not stipulate such clause. NIT says otherwise. When the parties entered into a contract, if such clause was specifically excluded they should have made a mention of the same in the contract. Contract was silent.
The contract was followed by Work Order issued by April 14, 2007 incorporating clause 4.9.1.
Thus notice inviting tender categorically imposed Excise Duty on the appellant, Work Order was consistent. Rothery being the only witness of the claimant had signed the Work Order. Whether or not Ahlawat being the local representative missed the issue, is immaterial. The Managing Director that also did not finally incorporate the clause mentioned above, signed the price bid.
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2012 (9) TMI 848
Valuation of closing stock of incentive sugar (free sugar) - levy price v/s cost price - Held that:- As it is the case of the assessee, that following the judgment of this Court in Ponni Sugars & Chemicals Ltd.(2008 (9) TMI 14 - SUPREME COURT ) the closing stock of incentive sugar should be allowed to be valued at levy price, which on facts, is found to be less than the cost of manufacture of sugar (cost price). We find merit in this contention. In Ponni Sugars & Chemicals Ltd. (supra), this Court, on examination of the Scheme, held that, the excess realization was a capital receipt, not liable to be taxed and in view of the said judgment, thus the assessee is right in valuing the closing stock at levy price.
The stock valuation of incentive sugar has a direct impact on the manufacturer's revenue or business profits. If to accept the case of the Department that the excess amount realized by the manufacturer(s) over the levy price was a revenue receipt taxable under the Act then the very purpose of the Incentive Scheme formulated by Sampat Committee would have been defeated. One cannot have a stock valuation which converts a capital receipt into revenue income - in favour of assessee.
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2012 (9) TMI 847
Entitlement to benefit of Section 80P(2)(a)(iii) - marketing of sugar - Held that:- As decided in CIT vs. Oracle Software India Limited [2010 (1) TMI 9 - SUPREME COURT OF INDIA] if an operation/process renders a commodity or article fit for use for which it is otherwise not fit, the operation/process falls within the meaning of the word `manufacture'.
As the above test has to be applied and adjudicated on case to case basis. It depends on the type of product which ultimately emerges from a given operation. As this aspect has not been examined by the Courts the case is to be remitted back to the CIT(A) to re-examine the matter.
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2012 (9) TMI 846
Penalty u/s 271D - Disallowance of share application amounts in cash - ITAT deleted the levy - Held that:- As decided in CIT, West Bengal I Versus Vegetable Products Limited [1973 (1) TMI 1 - SUPREME COURT] where two High Courts had confirmed a view acceptable to the assessee where as two other High Courts had taken a diametrically opposite view, interpretation which is favourable to the assessee, that cannot be considered as an unacceptable or untenable one, at least for purposes of penalty.
Thus it is held that there is no infirmity in the order of the Tribunal since there were two possible views – one directly in favour of the assessee is need to be taken as per COMMISSIONER OF INCOME-TAX Versus RUGMINI RAM RAGAV SPINNERS P. LTD [2007 (7) TMI 237 - MADRAS HIGH COURT] that the share application money was not deposit or loan under the provisions of Section 269T and therefore, the penalty u/s 271D was liable to be deleted as Tribunal rightly held that cash payments pertains to refund of share application money and not repayment of deposit or loan - in favour of assessee.
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2012 (9) TMI 845
Penalty u/s 271D - non comply with the provisions of Section 269SS - ITAT deleted the levy - Held that:- The Revenue is not correct in his contention that the basis of the decision of the Tribunal is untenable. The Tribunal has not rested its decision on the only circumstance that it is the business of the assessee to collect deposits and, therefore, it was entitled to collect them in cash even if it involves violation of Section 269SS, that is not the substratum of the decision.
The circumstances which were taken note of were that the depositors came predominantly from rural areas where there was either no proper banking facilities or such facilities were inadequate, that the deposits were basically saving schemes involving small amounts of daily or weekly savings, that there were logistical problems and fear of cumbersome procedure involved in the opening of the bank accounts and that contribution of small amounts were made as savings, that there was evidence in the shape of correspondence to show that some banks were reluctant to allow the agents of the assessee to open bank accounts for various reasons and so on and so forth - As the violation of Section 269SS ranged from just 1.1% to 6.14% for the years under appeal which was very low considering the total amounts of deposits collected. As no penalty proceedings were initiated for the intervening assessment years namely 1994-95 to 1998-99 and for the assessment years subsequent to the assessment year 2001-02.Thus it was not correct to state that the Tribunal based its decision on the only ground that Section 269SS cannot be applied to the assessee whose business itself was the collection of deposits - in favour of assessee.
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2012 (9) TMI 844
Remand matter to CIT(A) by Tribunal - assessment of fringe benefit - Held that:- As at this stage it would be essential to notice that the assessee claims that it was unaware of the order passed by the CIT(A) dismissing its Appeal No.157/2008-09, since it was disposed of ex-parte. It would be in the fitness of things that if the assessee approaches the Tribunal with an appeal against the said order the same would be considered having regard to the totality of the facts and if any application for condonation of delay is made the same shall be considered and the appeal will be heard.
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2012 (9) TMI 843
Capital expenditure incurred out of anonymous donation - ITAT grant the benefit of exemption to undisclosed income to the assessee - Held that:- The donations received by the assessee are not anonymous donations. The details in respect of the name and address are available in possession of the AO in the form of the name and address are available in possession of the AO in the form of donation receipts, which were impounded in the course of survey - The discrepancy in respect of the amount of Rs.2,49,000/- has occurred on account of computer malfunctioning, but the details as above are available in the donation receipts. Therefore, no donation can be said to be anonymous.
The income tax authorities were not right in holding that the amount received by the assessee as donations was not “anonymous donations” within the meaning of Section 11(3) because the receipts issued by the assessee trust were still in the custody of the department as the receipt books were impounded in the course of the survey and no confirmations were required to be filed by the assessee. In these circumstances the Tribunal held that Section 68 cannot be applied as the amount has already been shown by the assessee as income - no substantial question of law arises out of the order of the Tribunal - in favour of assessee.
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