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Showing 401 to 420 of 994 Records
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2013 (4) TMI 599
Reopening of assessment u/s 148 – reason to believe - assessee has made payment towards Voluntary Retired Scheme which was allowed as revenue expenditure. The CBDT has issued a Circular in which it has stated that any ex gratia amount which results in an enduring benefit to assessee should be treated as capital expenditure. In view of this, the said VRS payment is required to be disallowed as capital expenditure. Revenue therefore, reason to believe that the amount chargeable to tax has escaped assessment. Therefore, notice u/s. 148 is issued. Petitioner challenged the same in this court.
Held that - In our opinion, the Assessing Officer could not have issued the impugned notice on the basis of C.B.D.T circular. In that view of the matter, the circular of C.B.D.T may be a trigger, on the basis of which, the Assessing Officer may himself be satisfied that income chargeable to tax in a given case had escaped assessment. Such a circular by itself, in our opinion, cannot be the tangible material required for Assessing Officer to hold a belief that income chargeable to tax had escaped assessment. The Apex Court in the case of CIT v. Kelvinator of India Ltd. [2010 (1) TMI 11 – SC] has held that even post amendment in section 147 of the Act with effect from 1.4.1989, the concept of change of opinion has not been given a go-by. Even after the amendment in section 147, the Assessing Officer must have some tangible material to hold a belief that income chargeable to tax had escaped assessment. Thus on the basis of some general observation and discussion on principles for treating an expenditure either revenue or capital in nature, the Assessing Officer cannot claim to have been in possession of tangible material to hold a belief that income chargeable to tax had escaped assessment. we are satisfied that in the present case, notice for reopening has been issued without jurisdiction. In the result, the petition is allowed.
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2013 (4) TMI 598
Exemption under notification No. 21/2002-Customs – import of Electronic Sensor Paver Vogetel model super 1800-2 with AB 600-2 TC screed for laying bituminous pavement upto 9 M width along with accessories - held that:- As the maximum pave width of the equipment is only 6 meters, it does not satisfy the criterion of 7 meters size and above. If the intention was to cover the width of the bolt-on extensions also, the same would have been so specified in the notification. Thus from the product catalogue, it is amply clear that the equipment under import does not satisfy the product specification stipulated in List 18 of the notification and consequently, the equipment under importation does not qualify for the benefit of exemption and we hold accordingly. - Against assessee.
Sub-Contractor - whether the appellant is eligible to claim the duty exemption in terms of sub-clause (iii) of clause (a) of condition 40. - held that:- In law, “Subcontractor” is a person who is awarded a portion of an existing contract by a principle or general contractor. Subcontractor performs work under a contract with a general contractor, rather than the employer who hired the general contractor. - the appellant cannot be considered as a sub-contractor since he has not been named as such in the contract awarded to the consortium. - Against assessee.
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2013 (4) TMI 597
Anti-dumping duty - request for imposition of anti-dumping duty on imported Melamine. - scope of the term 'importer' - Section 9A of CTA, 1975 - held that:- while ascertaining the meaning or definition of any particular word the subject and context of the Act or Rule has to be understood in rational way avoiding absurdity and keeping in view the real intention and object to be achieved by framing of such Act or Rules. The Superior Court is empowered to do so if for this reason there may be little conflict with the apparent expression of a particular provision.
Nearly 15% of its total production is imported by it and that too casually and to meet customer’s demand during the time when the production was disrupted, and this quantity of import is very insignificant portion of the total import from the same exporting countries. - Realistic and logical meaning should be the person who is carrying on business of import exclusively for trading purpose is the importer under the said Rule.
Appellant does not carry on business principally, of import of Melamine. It is carrying on business amongst other of manufacturing of heavy chemicals of every description, whether required for civil, commercial or military defence purposes. - definition of importer in Customs Act, 1962, can not be applied here.
The definition in this Act is of general application of any import, which includes both for regular trader and exclusive consumer. Moreover Anti-Dumping Rules have not been framed under the Customs Act. This Rule has been framed under Section 9A of CTA, 1975 which is meant as correctly urged by Mr. Bajoria for imposition of rate of various duties under Act of 1962.
In this Act there is no definition of the word import. But the Central Government being subordinate legislature has described importer differently and independently and for specific purpose and it would be absurd to borrow any expression from Act of 1962 by the Court, when by the Rule 2(g) of the said Rules provide no other definition of any unexplained word can be adopted other than in the Tariff Act, 1975, therefore the definition given in the Rule has to be accepted in the context of object of the Rule. - Designated authority directed to proceed with investigations.
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2013 (4) TMI 596
Auction of the property of company in liquidation (Respondent 1) by Karnataka State Financial Corporation (KSFC) (Respondent 2) secured creditor of the company in association with O.L. – appellant was the successful bidder of the property - erstwhile Directors of the Company-in-liquidation called in question the confirmation of sale made by filing an appeal. The said appeal came to be ultimately allowed setting aside the sale in favour of the applicant. With regard to the amount which had been deposited as the auction sale price, the same has been refunded to the applicant - The issue in the instant application is however with regard to the amount which had been incurred by the applicant for taking possession and that was invested for improvement of the said property for its utilisation and also to protect the property.
Held that - In that regard, it cannot be in dispute that though the property was sold by the KSFC, the same was in association with the Official Liquidator and when such responsibility is cast on the Official Liquidator also to ensure the sale be conducted in accordance with law and when the Division Bench has found fault with the procedure, there would be joint responsibility. However, in the instant case, the undisputed position is that the dismantled steel structures and other materials which was available in the property due to the work of dismantling carried out by the applicant, which would in a normal circumstance have ensured to the benefit of the applicant has been subsequently sold for by the KSFC. The said amount is available with the KSFC. Further, when the property is re-auctioned, it would fetch a higher value and the liability of the KSFC in any event would be recoverable. The said amount with accrued interest will cover the major portion of the amount which is held as payable to the applicant. The application is allowed in part. The respondents 1 and 2 are held liable to pay the sum of, Rs.29,55,010/- to the applicant.
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2013 (4) TMI 595
Oppression and mismanagement - plea for rectification of register - petitioner was among the first subscribers to the MOA & AOA of respondent No. 1 company filing instant petition invoking the provisions of sections 111, 397 and 398 of the companies act as petitioner respondent No. 2 has removed the petitioner illegally from the directorship of the company under section 283(1)(g) and section 283(1)(z) by creating false record of issuing notices for Board meetings under certificate of posting and conducting meetings only on paper & the said notices of Board meetings were never received by the petitioner - whether the petition is maintainable? - Held that:- The petitioner contended that he is a subscriber to 3,333 shares and was the first director of the company. However, there is no admission by the petitioner that he paid the subscription amount to the company. In the affidavit the petitioner stated that he spent considerable amounts from his personal bank account running into lakh of rupees for the R1-company since its incorporation.
It is to bear in mind that even to seek relief for rectification of register of members, one has to necessarily establish the reasons/grounds for such rectification. It is not the case of the petitioner that even though he had paid the amounts for the subscribed shares, the company removed his name without any reason.
Mere mention of a particular provision would not make out a case automatically unless, the ingredients of that provision is satisfied in the petition. In the present case no such grounds are mentioned nor is any case made out seeking enforcement of that provision of law. Moreover it is an attempt to make out a case to maintain a petition. Admittedly, the petitioner's name appears in the MoA of the company as a subscriber and there is no other documentary proof to establish that he is a member of the company. The respondents categorically stated that the petitioner did not pay the subscription amount to the company. The petitioner did not deny the same except stating that he spent huge amounts on the company. Therefore, the petitioner did not pay the subscription amount thereby he cannot claim to be a member of the company.
It is mandatory requirement that any member or members who hold not less than 1/10th of the issued share capital and have paid all calls and other sums due on their shares can only maintain the petition. In the present case the petitioner alleges that he subscribed to the shares but the sum due on the said shares has not been paid to the company. Therefore, the petitioner is not entitled to file a petition since he did not fulfill the statutory requirement as contemplated under section 399 of the Act. Hence, the petition fails. It is a well settled principle of law that if the petition is not maintainable, the same cannot be entertained by the Bench. As the petitioner is not a member of the company, he cannot maintain the petition.
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2013 (4) TMI 594
Stay - job work - Principal was not having a manufacturing facility, power connection etc. - Notification No.214/86-CE dated 25.3.1986. - whether job worker is entitled to clear the job-worked goods without payment of duty - non compliance of order of pre-deposit issued by the Commissioner (appeals) - job work - Notification No.214/86-CE dated 25.3.1986. - held that:- appellant was not entitled to clear the goods to ROL without payment of duty. - Further, we have taken note of one submission made by the learned counsel which is to the effect that the department has initiated proceedings against ROL. - In the totality of the facts and circumstances of the case, in our view, a pre-deposit of 25% of the duty amount would suffice the purpose of Section 35F of the Central Excise Act before the learned Commissioner. - Stay granted partly.
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2013 (4) TMI 593
Entitlement of Cenvat Credit – construction activity - AR argued that both construction of workers quarters and vastuwall have no relationship with the manufacturing activity and, therefore, Cenvat Credit with respect to construction of workers quarters and vastuwall is not admissible.
Held that - applying the ratio laid down by the Hon’ble Apex Court in the case of Maruti Suzuki Limited vs. CCE, Delhi [2009 (8) TMI 14], we hold that unless the nexus is established between the services rendered and the business carried on by the assessee, the benefit of CENVAT Credit is not allowable. It is held that workers quarters and the vastuwall made inside the factory have no relationship with the manufacturing activity of the appellants and accordingly credit taken with respect to construction of same will not be covered within the definition of input service as defined under Rule 2(1). Matter remanded to the Original Adjudicating Authority for quantification of the above demand. So far as imposition of penalty is concerned, as issues were under litigation. Therefore, penalty under Rule 15(2) read with Section 11AC cannot be invoked and is accordingly set-aside.
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2013 (4) TMI 592
The present appeal seeks setting aside the penalty sustained by the Commissioner (Appeals) and the interest demand as per the provisions of Section 11AC of the Act - Larger Bench of the Tribunal finds that the applicant have suppressed the relevant facts during the earlier period should be applied to the present period also inasmuch as for the period from 1.4.2000, the appellant has not disclosed the relevant details to the department and failed to furnish correct details in the declarations filed under Rule 173C of Central Excise Rules, 1994. Hence, it is a clear case of intention to evade duty. -. Held that – Considering the decision of the Larger Bench, Tribunal do not find any reason to set aside the penalty or reduce the penalty. Appeal of the party fails and the same is dismissed.
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2013 (4) TMI 591
Notification No. 67/95 - Appellants paid excise duty on skimmed milk powder cleared for sale. They did not pay excise duty on skimmed milk powder which was retained and later converted into milk in their own factory - Held that:- Notification was issued on 19-7-1998 specifically exempting skimmed milk powder used in the regeneration of milk and this notification clearly brings out the intent of the Government that duty was not to be calculated on such use.
We take note of the fact that the tariff entry clearly uses the expression “intended for sale” - It is also a well-known practice in this industry that milk in surplus is preserved as skimmed milk powder for use during the lean season - Therefore, it is very clear that the Government had intention only for levying duty on skimmed milk powder intended for sale and this is reinforced by the exemption notification issued subsequently - Therefore, we do not find any reason for confirming demand of duty on skimmed milk powder which the appellant did not intend to sell and was stored for use in the lean season - The appeal is allowed setting aside the impugned order.
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2013 (4) TMI 590
Rejection of Rebate claims(not discharged the duty liability) - Rule 12 or the notifications issued thereunder would not apply to goods covered in the Compounded levy was not correct and to that extent, the impugned order was required to be set aside/modified - Held that:- Govt. finds force and concurs with the view of the applicant in view of the self explanatory and clarificatory portion of C.B.E. & C. Circular No 418/51/1998-CX., dated 2-9-1998 extracted as per para 15 above which clarifies : “That rebate will be allowed even in cases where manufacturers make delayed payment.” - Further, the Hon’ble Supreme Court’s Judgment in Omkar Overseas Ltd. v. UOI (2003 (8) TMI 45 - SUPREME COURT OF INDIA ) cited by the applicants also support this view.
Thus finally Govt. of India allowed the rebate claim on the condition that the rebate has to be allowed in respect of the claims which are not hit by limitation, provided the duty under the Compounded Levy Scheme is fully discharged by the manufacturer of the goods under Compounded Levy Scheme as per the rate specified by Notification No. 31/98-C.E. (N.T.), dated 24-8-98 even for the period 1-8-1997 to 23-8-1998 - The rate of rebate specified is 12% on FOB value - Hence, the Revenue’s contention in this aspect also does not survive.
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2013 (4) TMI 589
Waiver of pre-deposit - Violation of conditions of Notification No. 23/2003-C.E - Violation of Foreign Trade Policy - Held that:- Regarding Violation of conditions of Notification No. 23/2003-C.E - Held that:- We find that Notification No. 23/2003-C.E. only talks about clearances of the goods to the person who is holding an advance release order or advance licence in terms of para 4.1.1 of the export policy. It is undisputed in this case that the clearances affected by the appellant was to advance licence holder who has been producing the advance release orders to the appellant, who in turn produced the same to the jurisdictional authoritie - Appellants have been following the provisions of Notification No. 23/2003-C.E. correctly for all the clearances made to advance licence holders.
As regards the violation of the paras 6.8 & 6.9 of the Foreign Trade Policy, we find that it is a settled law that such violations, if any, can be only adjudged by the DGFT authorities.
We also find that the appellant had been clearing the goods under advance licence/advance release order, during the period 2005 to 2008 while the show cause notice has been issued on 18-3-2010 which seems prima facie to be time barred, inasmuch as the clearances were countersigned by the range Superintendent in-charge of the appellant’s factory. Prima facie - We find that the appellant has made out a case for the complete waiver of the pre-deposit of the amounts involved - Application for the waiver of pre-deposit of the amounts involved is allowed - Recovery thereof stayed till the disposal of appeal.
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2013 (4) TMI 588
Waiver of duty , interest and penalty - Denying credit of service tax paid in respect of medical insurance covers for the families of the workmen is not in or in relation to the manufacture of the goods.- Held that:- The contention of the Revenue is that for stay purpose, service tax paid in respect of mediclaim policy in respect of families of the workmen cannot qualify as an activity in or in relation to the manufacture of final product. It is also submitted that mediclaim insurance service is a welfare activity and cannot be treated as ‘input service’ for the manufacture of goods.
We find prima facie merit in the contention of Revenue - We find that this is not a fit case for total waiver of duty. Therefore, applicant is directed to deposit 50% of the demand within 6 weeks - On deposit of above mentioned amount, pre-deposit of remaining dues are waived - Recovery of the amount is stayed during pendency of the appeal.
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2013 (4) TMI 587
Assessment orders illegal or without jurisdiction or null and void as a wrong section finds mention in the impugned assessment orders - Held that:- As from the photostat copies of the impugned assessment orders and challans it appears that there is overwriting in the assessment orders on the figure (3) of words "section 16 (3)". As nothing turns upon this overwriting, it cannot be taken into account and leave the matter as it is.
No merit in the argument of the petitioners as point raised by the petitioners is more technical in nature than substantial one.
As decided in United Bank of India Vs. Satyawati Tondon and others (2010 (7) TMI 829 - SUPREME COURT) that in all such cases of tax matters, the court must insist that before availing remedy under Article 226 of the Constitution of India, a person must exhaust the remedies available under the relevant statutes vide para-43 - writ petition dismissed as petitioners have adequate alternative remedy by way of appeal.
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2013 (4) TMI 586
Reassessment orders - sale or works contract - bifurcation of order - petitioner was a partnership firm and engaged in the business of execution of works contract - Held that:- A bare perusal of the assessment order would show that the assessing authority has noticed only this much that the copies of certain documents such as contract and tender agreement etc. were produced which show that the work of supply, installation, commissioning, loading and unloading were included therein. But the assessing authority failed to take note of the fact that the supply of generators and commissioning expenses were shown at ₹ 10,82,101. While the petitioner has shown the purchase of generator for ₹ 5,89,93,249.96, which gives the commissioning expenses to 1.77% of the total amount of supply ₹ 6,11,01,227/-.
The attention of the assessing authority escaped this aspect of the case which is vital and goes to the root of the matter. As in the case of M/s. Kone Elevator (India) Ltd. (2005 (2) TMI 519 - SUPREME COURT OF INDIA) 0Apex Court has laid down test to find out as to whether a particular transaction is supply of goods or of work contract & held that the assessee therein divided the execution of the contract into two parts namely work to be initially done in accordance with the specifications laid down by the assessee and "the supply of lift by the assessee".
The "work part" in the contract was assigned to the customer and the supply part was assigned to the assessee. Here, the "work part" as well as "supply part" were assigned to the petitioner. It is not necessary to dwell upon the issue any further as it may prejudice the case of either party. Suffice it to say that there is material before the respondents to form a belief that the turnover of the petitioner has escaped the assessment.
The assessing authority while framing the assessment order has overlooked the judgment of the Apex Court on the issue given in the case of M/s. Hindustan Shipyard Limited Vs. State of Andhra Pradesh [2000 (7) TMI 864 - SUPREME COURT OF INDIA] and the principle laid down therein has been reiterated in M/s. Kone Elevator (India) Ltd. (supra).
Thus it is a case of escaped assessment. In view of the different provisions provided under the Act, even if the contract of the petitioner is taken as a work contract, then also trade tax was payable on the sale of the movable goods supplied under the contract.
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2013 (4) TMI 585
Detention issued U/s 47(2) of the KVAT Act - Held that:- The fact remains certificate of ownership and declaration did not accompany the consignment - Were produced before the Check Post Authorities after the detention
Prima facie, I do not find any irregularity in the detention of the consignment. I do not think that pending adjudication, the goods should be kept under detention. In such circumstances, I direct that the adjudication in pursuance of Ext.P3 will be completed - Pending such adjudication, the consignment detained will be released on the petitioner, a registered dealer under the KVAT Act, furnishing a bond for the amount demanded, without sureties - The writ petition is disposed of as above.
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2013 (4) TMI 584
Revisional jurisdiction under Section 20(1) - After six years from the date of order of assessment - Consignment sales as fictitious - Provisional assessment - Disallowing claim for exemption - Period of limiation - Held that:- In HYDERABAD INSULATED WIRES (P) LTD v. COMMISSIONER OF COMMERCIAL TAXES, HYDERABAD {1990 (10) TMI 340 - ANDHRA PRADESH HIGH COURT}, a Division Bench of this Court held that it is impermissible to levy additional tax under Section 5-A of the GST Act in exercise of revisional powers by the Commissioner when such levy of additional tax was not all proposed by the Deputy Commissioner in the revision notice issued to the assessee;
In COMMISSIONER OF INCOME TAX V. ALAGENDRAN FINANCE LTD , the Commissioner of Income Tax [2007 (7) TMI 304 - SUPREME Court], while exercising revisional powers under Section 263 of the Income Tax Act, 1961, reopened on 29.3.2004, the orders of assessment only in relation to the issue of "lease equalization fund" which was not subject of the re-assessment proceedings dated 28.3.2002 ( in respect of some other issues ). The Supreme Court held that, the period of limitation provided for under sub-section (2) of section 263 of the Act would begin to run from the date of orders of the assessment and not from the order of re-assessment dated 28.3.2002 and the revisional jurisdiction, invoked by the Commissioner of Income Tax was beyond the period of two years ( at that time ) from the end of the financial year in which the order sought to be revised was passed, and was wholly without jurisdiction and a nullity.
We respectfully follow the above two decisions and hold that the very proposal of the respondent are wholly without jurisdiction and barred by limitation prescribed under sub- section (3) of Section 20 of the GST Act as the respondent clearly intended to re-assess the appellant for the assessment year 2000-01, thereby interfering with the order of assessment dated 15.3.2003 of the Deputy Commissioner (CT), Abids while purporting to revise the order dated 28.2.2007 of the Additional Commissioner (CT) Legal, A.P. - Accordingly, the Special Appeal is allowed.
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2013 (4) TMI 583
Waiver of predeposit – Demand of service tax/Interest/penalties - The appellate authority required the appellants to predeposit various amounts under Section 35F of the Central Excise Act but none of the appellants made any deposit within the prescribed period. Having found no evidence of predeposit, the Commissioner (Appeals) rejected all the appeals on the sole ground of non-compliance with Section 35F ibid without examining the merits of the cases. The appeals before us are all directed against such orders of the Commissioner (Appeals). - Held that - we set aside the impugned orders and allow these appeals by way of remand with a request to the Commissioner (Appeals) to dispose of the assessees appeals on merits without insisting on any predeposit. The stay applications also stand disposed of.
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2013 (4) TMI 582
Penalties - u/s 76, 77 & 78 - appellant filed appeal on the ground that 25% penalty imposed under Section 78 of the Finance Act, 1994 has already been deposited by them and therefore penalty under Section 76 & 77 of the Finance Act, 1994 are not attracted.
Held that - We are of the view that the judgment of division Bench of the Kerala High Court in the case of the Assistant Commissioner of Central Excise v. Krishna Poduval reported in [2005 (10) TMI 279] runs counter to the express provisions contained in Sections 76 and 78. In fact, in support of our contentions, we would like to point out that by Finance Act, 2008 (18 of 2008) which came into force from 10-5-2008, the Parliament has made the legal position clear by introducing a proviso to Section 78. It reads as under : provided also that if the penalty is payable under this section, the provision of Section 76 shall not be attracted. In view of the above judgment, it is clearly held that amendment carried out in Section 78 of the Finance Act, 1994 is only clarificatory in nature and the position of not imposing penalty under Section 76, when penalty under Section 78 was already imposed, will hold good for the period prior to the amendment also. Based on the above observations it is held that penalty under Section 76 of the Finance Act, 1994 is not imposable once penalty under Section 78 was imposed and 25% of such penalty has already been paid by the appellant. Based on the above observations the appeal filed by the appellant is partially allowed to the above extent only.
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2013 (4) TMI 581
Imposition of penalty – simultaneous u/s 76 & 78 - Respondent argued that the SCN has been issued after the amendment of Section 78 of the Finance Act, 1994 – Held that - In the judgment, the Hon’ble Karnataka High Court in the case of Motor World [2012 (6) TMI 69] has held that the amendment carried out u/s 78 of the Finance Act, 1994 is only a clarificatory in nature and therefore simultaneous imposition of penalty under Section 76 & 78 of the Finance Act, 1994 are not imposable for the period prior to 10/05/2008 also. The order passed by the Commissioner (A) is required to be upheld. Accordingly, the Department appeal is rejected.
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2013 (4) TMI 580
Denial of Cenvat credit – Input services - appellant is providing the services of renting of immovable property service and availing credits on input services - Revenue contended that the services which are availed are not utilized for providing of output service – Held that - Following the judgment of the Hon'ble High Court of Mumbai in the case of Coca Cola India Pvt.Ltd. [2009 (8) TMI 106] as their Lordships have categorically stated that the input services would be the services which are used relating to the business activity. In the case in hand, the output service provided by the appellant is intrinsically co-related the services received by them from various service providers. I find that the appellants have made out a case in their favour. Accordingly, the impugned order is liable to be set aside.
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