TMI Tax Updates - e-Newsletter
October 30, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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Income Tax:
500gm, jewellery is expected in the possession of a married lady and that much of ornaments cannot be seized. - HC
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Income Tax:
Reassessment u/s 147 - improper service of notice u/s 148 - A notice was served at the registered office of the assessee company. The server of the department has served the notice in good faith and now by raising the technical ground, the assessment order cannot be set aside specially when the assessee has already voluntarily participated in the appellate proceedings. - HC
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Income Tax:
Claim of exemption u/s 10(38) on sale of share on capital gains earned on it - Conversion of stock in trade of shares into investment - benefit of exemption allowed - HC
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Income Tax:
Interest u/s 234B Tax liability due to retrospective amendment - failure to pay advance tax - no interest liability under section 234B - HC
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Income Tax:
Jurisdiction of the Tribunal to order refund of the amount appropriated by the revenue, during pendency of the appeal The order passed by the Tribunal, does not suffer from any error of jurisdiction or of law - HC
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Income Tax:
Recovery of dues - renewal of bank guarantee furnished earlier during the proceedings - Perusal of the aforesaid bank guarantee reveals that renewal does not require any formal format, as the clauses reproduced above clearly envisage an automatic renewal for a period of three years - HC
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Income Tax:
Rejection of registration u/s 12AA - is is not correct to say that if a trustee is a life long member of a Trust, it automatically raises an inference that the Trust is not charitable. - HC
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Income Tax:
Registration of assessee u/s 12AA of the Income tax Act rejected by CIT the order of the Tribunal, declining to impose its own opinion on merits and remitting the matter to the CIT to decide a matter afresh is not faulted - HC
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Income Tax:
Determination of income on the basis of TDS certificate - After appraising the account books and referring to each receipt and TDS certificate, set out facts, there was no fault on the part of the assessee. - HC
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Income Tax:
Reopening of finalized assessment u/s 147 after retrospective amendment to Section 80P - reassessment is not valid - HC
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Customs:
Offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The conclusion of the trial Court in having held that Sections 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it - SC
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Customs:
Valuation - Import of artificial marble slabs - Once the restricted goods imported were subject to licence condition which was not fulfilled by the appellant, there is no scope to interfere with the redemption fine and penalty imposed by Customs - AT
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Customs:
Origin of goods - Imposition of anti dumping duty - Re export of goods on payment of redemption fine - Goods declared as manufactured in Malasia but later found to be Chinese products - demand confirmed - AT
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DGFT:
Duty Drawback - While giving a declaration for non-availment of CENVAT credit, applicant has to ensure that it has also not claimed CENVAT credit on service tax on input services - Circular
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Service Tax:
Valuation - value of free services provided during warranty period - in a composite transaction involving both supply of material and providing of service the state governments and the central government can tax only the respective aspects falling within its legislative competence and both the governments cannot levy tax on the same aspect - stay granted - AT
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Service Tax:
Fabrication of structures at various sites would amount to manufacture and hence will not fall under the category of erection, installation and commissioning and no Service Tax liability arises - stay granted - AT
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Service Tax:
Renting of immovable property service - Ex-parte order - appellant being non-cooperative, they need to be put to some condition so that they file a reply and appear before the adjudicating authority as and when the adjudicating authority grants a personal hearing. - matter remanded back subject to pre-deposit of Rs. 30 lakhs - AT
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Service Tax:
Appropriate rate of tax - Works Contract Service - the rate that should be applied for levy of Service Tax is the rate prevalent on the date of rendering the services and not the rate applicable on the date of receipt of payment. - AT
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Service Tax:
Valuation - Commercial or industrial construction service - inclusion of cost of material - appellant has been able to show that the materials have been sold and have been assessed to VAT - stay granted - AT
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Central Excise:
Production capacity based duty - compound levy - Ghutkha under Pan Masala Packing Machines - no excise duty can be imposed under PMPM Rules unless there is production or manufactured goods under the Excise law - AT
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Central Excise:
Extension of Period of Stay beyond 365 days Entire object and purpose of insertion of sub-section 2A in Section 35C by Section 140 of the Finance Act, 2002 (20 of 2002) w.e.f. 11.5.2002 and third Proviso by Finance Act, 2013 will stand defeated, if the waiver of pre-deposit is granted indefinitely - HC
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Central Excise:
SSI Exemption Notification No.08/2003 branded goods - rural area or not - Since the certificates were issued by the same authorities there was force in the argument that the area where they manufactured the branded goods, prima facie, has to be treated as a rural area - stay granted - AT
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Central Excise:
Valuation - After sales service - Service Discount in lieu of the Guarantee - there is no evidence on records that any of the after sales money consideration has flown back from the ultimate buyer of the goods to the manufacturer - no demand - AT
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VAT:
Works Contract - particular unit is not resold but retained by the Appellants, there would be no works contract to that extent - HC
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2013 (10) TMI 1187
Estimation of income - assessment u/s 158BC after search - Estimated G.P. rate - business of the Sarrafa Held that:- From the record, it appears that the G.P. rate in the trade of the Saraffa in various cases was accepted by the A.O. @ 15% to 25%. So, the CIT (A) has taken the average G.P. Rate @ 20% on the estimated sale and deleted the addition of Rs.20/- lacs which was endorsed by the Tribunal - Estimation is a question of fact as per the ratio laid down in the case New Plaza Restaurant v. ITO [2008 (7) TMI 260 - HIMACHAL PRADESH HIGH COURT]; Sanjay Oil Cake v. C.I.T. [2008 (3) TMI 323 - GUJARAT HIGH COURT] - In view of above, it appears that the A.O. has made the addition of Rs.20.0 lacs on estimate basis. The CIT (A) has deleted the same on estimate basis and the Tribunal upholds the same - estimation is a question of fact Decided against the Revenue. Investment in jewellery seized during the search Held that:- Seized jewellery was claimed by three ladies namely Rupali Rastogi, Smt. Sunita Rastogi; and Smt. Kamni Rastogi. All the ladies belonged to the reputed families and they are married. As per the CBDT Circular discussed in the case of Smt. Pati Devi vs. ITO; [1999 (2) TMI 43 - KARNATAKA High Court], 500gm, jewellery is expected in the possession of a married lady and that much of ornaments cannot be seized. If we go with the CBDT Circular dated 11.05.1994 and the ratio laid down in the case of Smt. Pati Devi (supra), then each lady is expected to own 500gm. Ornaments Decided against the Revenue.
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2013 (10) TMI 1186
Reassessment u/s 147 - improper service of notice u/s 148 - validity of the service of notice under section 148 Held that:- From the record, it appears that Sri O. P. Nehru has received the notice on 25.02.2004 at the assessee's premises and he was the legal officer of the assessee company and on earlier occasions, he has received the notices from the department. Similarly, Sri Dinesh Singh, who is the Chartered Accountant of the company has represented the assessee on many occasions. A notice was served at the registered office of the assessee company. The server of the department has served the notice in good faith and now by raising the technical ground, the assessment order cannot be set aside specially when the assessee has already voluntarily participated in the appellate proceedings. Inspiration may be drawn from the Section 292 BB, though the same is not applicable during the assessment year under consideration but the fact remains that the assessee has participated voluntarily in the appellate proceedings - In the instant case, the assessee is a company whose employees/consultant are the Members of the family. Thus, service of notice is sufficient as per the ratio laid down in the case of CIT vs. Smt. Kanti Devi Gupta; [2004 (9) TMI 41 - MADHYA PRADESH High Court] Decided in favor of Revenue.
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2013 (10) TMI 1185
Unexplained cash credit u/s 68 of the Income Tax Act - creditworthiness of the creditors and genuineness of the transaction - ITAT Deleted the addition - Held that:- Transaction through bank is not sufficient as per the ratio laid down in the case of CIT Vs. Precision Finance Pvt. Ltd, [1993 (6) TMI 17 - CALCUTTA High Court]. Merely because the money is transferred through the bank account does not prove that the money is explained. The appellate authorities have not examined the creditworthiness of the persons or genuineness of the transactions - Restored the matter back to the Tribunal to examine the matter afresh in the light of above discussions.
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2013 (10) TMI 1184
Rate of gross profit on undisclosed sale - Assessee himself has admitted that unaccounted sales were affected Held that:- The Assessing Officer has adopted the gross profit on the basis of gross profit shown by the assessee for the recorded sales. In most of the cases, the gross profit was shown by the assesse on recorded sales at 11.2% and the Assessing Officer had adopted the same at 13% - This order of AO is confirmed.
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2013 (10) TMI 1183
Reasons to be recorded for issuance of notice u/s 148 of the Income Tax Act Income of the Trust belongs to the Assessee or not Held that:- Trust was assessed for the year 1980-81 to 1983-84 and in respect of which assessment were set aside and were thereafter restored against which an application for reference was rejected. The additions, if any, could have been made in the hands of the Trust by way of rectification. The material available with the Income Tax Officer was not sufficient for initiating action under Section 148 on the ground that income of the assessee has escaped assessment. There was no findings in the case of the Trust that same was not genuine and that income belongs to the assessee - Income Tax Officer could not have assessed income in the hands of the assessee unless the Trust, which was assessed to which income was not found to be genuine. Once the Trust was assessed and that the order setting aside the assessment was restored and the application was also dismissed, the income could not have been assessed in the hands of the assessee and in this regard notice, which did not spell out whether it was issued under Section 147 (a) or 147 (a) (b) was not valid Decided against the Revenue.
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2013 (10) TMI 1182
Claim of exemption u/s 10(38) on sale of share on capital gains earned on it - Conversion of stock in trade of shares into investment - Held that:- statute did not reject or frown upon conversion of stock in trade into investment and the said conversion was permissible Reference is made to the Circular No. 4/2007 dated 15th June, 2007 issued by the Central Board of Direct Taxes, which stipulates that two portfolios one for stock in trade and one in respect of investments could be maintained by the same assessee benefit of exemption u/s 10(38) allowed - Decided against the Revenue.
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2013 (10) TMI 1181
Interest u/s 234B Tax liability due to retrospective amendment - failure to pay advance tax - Held that:- The assessee claimed exemption under Section 81-IA of the Act while filing his return of income in November, 2006. The exemption was nullified by an amendment that came into force under the Finance Act, 2007 with retrospective effect. The assessee, therefore, could not be expected to know on the relevant date, that claim for exemption under Section 81-IA of the Act would not be available in view of the retrospective amendment and though liable to pay tax in view of the retrospective amendment, cannot be held liable to pay interest Reliance has been placed upon ratio recorded by a Division Bench of this Court in The Commissioner of Income Tax, Panchkula V/s M/s Haryana Warehousing Corporation, Panchkula's case [2008 (4) TMI 214 - PUNJAB AND HARYANA HIGH COURT] Decided against the Revenue.
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2013 (10) TMI 1180
Explanation (baa) of section Section 80HHC of the Income Tax Act Computation of profit from business for deduction u/s 80HHC Held that:- Reliance has been placed upon the case of K. Ravindranathan Nair, [2007 (11) TMI 10 - Supreme Court of India], wherein it was held that formula in section 80HHC(3) provides for a fraction of export turnover divided by the total turnover to be applied to business profits calculated after deducting 90% of the sums mentioned in clause (baa) of the Explanation. Hence, profit incentives and items such as rent, commission, brokerage charges etc., though they form part of the gross total income have to be excluded as they are independent incomes which have no element of export turnover. In K. Ravindranathan Nair, the Supreme Court has held that where charges, though part of the gross total income, constitute independent incomes like rent, commission and brokerage 90% of the said sum has to be reduced from gross total income to arrive at business profits and has to be included in the total turnover in the said formula to arrive at the business profits in terms of Explanation (baa) Relying upon the above judgment, the instant case has been decided against the Assessee.
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2013 (10) TMI 1179
Penalty u/s 271(1)(c) of the Income Tax Act Held that:- The appellant filed a return of income disclosing sale of land. Upon scrutiny of the return under Section 143(3) of the Income Tax Act, 1961, it is discovered that the assessee had sold two properties on 30.12.2005 for a consideration of Rs.1,26,04,166/-, allegedly, purchased in 1991 and 1996. After considering the documents on record, the cost of acquisition, vis-a-vis, the appellant, was found to be Rs.70,078/-. The Assessing Officer also found that properties had been purchased on 29.5.1998 and not in the year 1991-92 as claimed by the assessee. The assessee was unable to tender any explanation, thereby inviting additional tax as well as a penalty of 100% as held by Tribunal Decided against the Assessee.
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2013 (10) TMI 1178
Jurisdiction of the Tribunal to order refund of the amount appropriated by the revenue, during pendency of the appeal Held that:- Jurisdiction of the Tribunal to order refund of the amount appropriated by the revenue, during pendency of the appeal. The learned Tribunal has held that it is empowered, in view of nature of its jurisdiction, as well Section 151 CPC to order refund, as the stay order has not been vacated. The power to ensure that its orders are not violated during pendency of a lis are inherent in any Court or Tribunal. In fact it is the bounden duty of the Tribunal to ensure where its order is violated that the violation is adequately redressed and money appropriated, is restituted. If such a power is held not to be available to the Tribunal, its interim orders would be flouted with impunity. If, the revenue was of the opinion that the stay order has been violated by the assessee or has been vacated, it should have approached the Tribunal for clarification by way of an appropriate application but instead proceeded in a ham-handed manner, to appropriate this amount. The order passed by the Tribunal, does not suffer from any error of jurisdiction or of law Decided against the Revenue. Whether adjournment is sought by assessee Held that:- A perusal of the Tribunals order reveals that counsel for the assessee brought it to the notice of the Tribunal that the appeal involves an issue relating to AMP, which is pending before a Special Bench, in the case of LG electronics. The Tribunal adjourned the case to 16.04.2013. The opinion recorded by the Tribunal that order dated 16.01.2013 does not record a request for an adjournment, at the behest of counsel for the assessee, cannot be faulted. The counsel for the assessee brought to the notice of the Tribunal that an appeal involving a similar issue is pending before a Special Bench. It was for the Tribunal to hear the appeal or adjourn the appeal. The Tribunal choose, instead, to adjourn the appeal as it could not be decided without decision of the reference. The order dated 16.01.2013 must, therefore, be read as the assessee bringing a fact to the notice of the Tribunal and the latter adjourning the case. The endeavour of the revenue to interpret this order as an adjournment claimed by the assessee, in our considered opinion is erroneous as even a prima facie perusal of the order does not indicate any request by counsel for the assessee for an adjournment Decided against the Revenue.
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2013 (10) TMI 1177
Recovery of dues - renewal of bank guarantee furnished earlier during the proceedings - Notices under Section 226(3) of the Act, treating the petitioner as an assessee in default Direction to the Standard Chartered Bank to remit an amount of ₹ 26,26,87,000/- to the department Held that:- A perusal of the letter reveals that the Citi Bank has clearly stated that the bank guarantee is valid in their records and has been issued on behalf of the "Motorola India Private Limited." It is not denied by the respondents that letter was received by the respondents before they appropriated money from the petitioner's account. It is, therefore, rather surprising as to how and why notices were issued, under Section 226(3) of the Act, treating the petitioner as an assessee in default and, thereafter, directing the Standard Chartered Bank to remit an amount of ₹ 26,26,87,000/- to the department. Perusal of the aforesaid bank guarantee reveals that renewal does not require any formal format, as the clauses reproduced above clearly envisage an automatic renewal for a period of three years except if the assessee does not furnish requisite documents regarding the bank guarantee to the bank and the bank, thereafter intimates the government 60 days before expiry of the bank guarantee that the guarantee shall expire on 28.02.2012 or on the happening of events enumerated in Clause 4 of the bank guarantee. Decided in favor of Assessee.
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2013 (10) TMI 1176
Penalty u/s 271(1)(c) of the Income Tax Act Deduction u/s 80IB of the Income tax act Held that:- Commissioner of Income Tax as well as the Income Tax Appellate Tribunal have recorded concurrent findings of fact that as the assessee was allowed deduction under section 801B of the Act for assessment years 2004-05 and 2005-06, but disallowed similar deduction for assessment year 2006-07 as the assessee's returns were beyond the period prescribed by Section 139(1) of the Act, it cannot be said that the claim for deduction under section 801B of the Act was mala fide or raised with an object to evade tax. Reliance has been placed upon the judgment of Honble Supreme Court of India in the case of CIT versus Reliance Petro Products Pvt. Ltd.[ 2010 (3) TMI 80 - SUPREME COURT ], wherein, while considering the question of levy of penalty, it was held that the mere fact that an assessee's claim for deduction is not accepted, does not automatically invite penalty. The revenue has not been able to establish any fact that would enable us to hold that deduction claimed by an assessee was mala fide or raised with the object of evading tax Decided against the Revenue.
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2013 (10) TMI 1175
Rejection of registration u/s 12AA of Trust on the ground of suspicion regarding genuineness of its activities Held that:- The object of Section 12AA of the Act is to examine the genuineness of the objects of the Trust and though while examining genuineness, the income as well as resources of the Trust may be taken into consideration but any suspicion as to these facts cannot be the sole criteria for rejecting an application under Section 12A of the Act Decided against the Revenue. Trustee, a life long membership is inferred as not charitable trust Held that:- There appears to be a misconception amongst officers exercising power under Section 12AA of the Act that if a trustee is a life long member of a Trust, it automatically raises an inference that the Trust is not charitable. The fact that a trustee is a life member, may be relevant but cannot by itself lead to a finding that the Trust is not charitable Decided against the Revenue.
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2013 (10) TMI 1174
Registration of assessee u/s 12AA of the Income tax Act rejected by CIT Held that:- CIT failed to conduct an independent enquiry, disregarded the fact that the appellant was allowed exemption, under Section 10(23C)(iiiad) of the Act and in essence has raised inferences contrary to facts. The Tribunal has also held that the CIT has ignored that the appellant is running a school since its inception. The jurisdiction to allow or reject an application, filed under Section 12AA of the Act rests with the CIT. The CIT having ignored relevant facts and considered factors that were not germane to the controversy, the order of the Tribunal, declining to impose its own opinion on merits and remitting the matter to the CIT to decide a matter afresh is not faulted Decided in favor of revenue.
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2013 (10) TMI 1173
Determination of income on the basis of TDS certificate - assessee claimed that the income pertaining the TDS certificates which were received late was booked in the earlier assessment year - Held that:- Lottery prize amounts received are duly reflected in account books for the relevant assessment years. The assessee having proved that TDS certificates, issued late, pertain to receipts reflected in the account books for assessment year 2006-07, the impugned orders, based upon a detailed appraisal of the account books are legal and valid - After appraising the account books and referring to each receipt and TDS certificate, set out facts, there was no fault on the part of the assessee.
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2013 (10) TMI 1172
Reasons to be recorded for cancellantion of registration u/s 12AA of the Income tax act, by the Commissioner Held that:- Section 12AA(3) of the Act, reveals that a precondition to cancellation of registration are findings that activities of the trust are not genuine or are not being carried out, in accordance with objects of the trust. Thus, before cancelling registration, a Commissioner is required to record a finding that activities of the trust are not genuine or are not being carried out, in accordance with objects of the trust. A perusal of the order passed by the Commissioner reveals that he did not record any finding as required by Section 12AA(3) of the Act. The Income Tax Appellate Tribunal, therefore, rightly reversed the order passed by the Commissioner Decided against the Revenue.
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2013 (10) TMI 1171
Mens rea for penalty u/s 271(1)(c) of the Income Tax Act - The respondent-assessee is a company engaged in manufacture of hosiery goods at Ludhiana. A survey under Section 133A of the Act was carried out in the business premises of the assessee. It surrendered undisclosed income amounting to ₹ 1.20 crores under different heads. The said income was included in the profit and loss account and offered to tax. However, the assessee claimed deduction on the entire income under Section 80IB of the Act which included the aforesaid surrendered Income of ₹ 1.20 crores Held that:- Reliance has been placed upon the judgment in the case of CIT v. Rubber Udyog Vikas (P) Limited, [2011 (2) TMI 858 - PUNJAB AND HARYANA HIGH COURT], wherein it was held that making incorrect claim would not tantamount to furnishing of inaccurate particulars unless it was established that the assessee had acted with mala fide intention or had claimed deductions being aware of the well settled legal position Thus, the instant case is not a fit case for imposition of penalty u/s 271(1)(c) of the Income tax act Decided against the Revenue.
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2013 (10) TMI 1170
Deduction u/s 80G(5) of the Income Tax Act Held that:- Section 80G(5)(iv) requires an institution or fund to maintain accounts of its receipts and expenditure but the Director of Income-tax (Exemption), in his order dated September 24, 2010, has not alleged or stated that there was any such violation. The said order records that for the period ending March 31, 2008, and March 31, 2009, hardly any expenditure had been incurred and no charitable activities were performed - Case of the respondent- assessee was/is that they had spent Rs. 25,000 on 20 operations of disabled patients. Further, they had collected the corpus to establish a dharamshala - There was no violation of clause (iv) of section 80G(5) Decided against the Revenue.
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2013 (10) TMI 1169
Leasing of commercial complex - Business income or House property income - Reassessment u/s 147 - Whether status of assessee (i.e. Firm or AOP) would be relevant to determine head of income for the earlier AY ITAT had decided that the income should be taxable as income from House Property - For the current AY ITAT had remanded back the matter - Held that:- when the question does not really arise for our consideration from the order of the Tribunal, it is not necessary to go into for examination of this question as for academic purpose. In so far as reopening is concerned, the matter having been remanded and being kept open, that again is not a matter which is required to be examined by this court in this appeal to decide on the substantial question of law. The Tribunal itself has reserved liberty on this aspect to the Assessing Officer. Res- judicata to apply in cases regarding taxation matters Held that:- Res judicata is not strictly applied in tax matters as in civil matters and particularly under the Civil Procedure Code, 1908, as each assessment year is different and it is for the assessee to assert its position and make it good and it is always open to the assessing authority to examine such matters.
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2013 (10) TMI 1168
Reopening of finalized assessment u/s 147 after retrospective amendment to Section 80P - Exemption in respect of income earned on the sale of liquor in the hands of Co-operative society - Held that:- From the decisions of the Hon'ble Supreme Court and the discussions made therein, it is apparent that the amendment which was brought in 1999 has became as the Income-tax (Second Amendment) Act, 1999 (Act 11 of 1999), and on recording the submission made by the Solicitor General before the Delhi High Court when the amendment was impugned, it was made clear that the amendments would apply to the assessments which were yet to be finalized - In the present case, the assessments were of the year 1997, 1998 and 1999 and, admittedly the assessments were finalised in 1999 and it were reopened by issuing notice dated January 17, 2003, under section 148 of the Act. Therefore, the present case falls within the assessments finalised before the amendment and no doubt the assessee is entitled for deduction Decided in favor of Assessee. Deduction in respect of interest income - Held that:- the deduction claimed in respect of sale of liquor does not fall under the categories stipulated in section 80P(2) of the Act and, therefore, the Tribunal has rightly rejected the claim of the assessee with regard to the sale of liquor. - Decided against the assessee. Deduction in respect of income from consumer goods sales and the income from liquor sales Held that:- The Tribunal without assigning any reason has just upheld the order of the authorities. When it is not in dispute that the agricultural produce are grown by its members and fall within the category (iii) of section 80P(2) and, moreover, the goods are meant for public distribution we have been left with no other option than to set aside the order of the authorities as well as the Tribunal on this score. Decided against the Assessee.
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Customs
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2013 (10) TMI 1205
Confiscation of gold - Detention under Customs Act, 1962 - Petitioner contends that he came to know about the adjudication order only in 2009 - Held that:- As per the adjudication order in original, direction was made for absolute confiscation of 9 Kilograms of gold and penalty of Rs.8 lacs was imposed. The adjudication order was sent to the address of the petitioner at Punjab but the same could not be served as the petitioner was absconding. The petitioner cannot and should not be allowed to take advantage of his own wrong, as he was absconding and deliberately did not appear before the courts/authorities. Once show cause notice was issued and served on the petitioner, as accepted, he was aware about the adjudication proceedings. The plea taken by the petitioner that he came to know about the adjudication order only in 2009 is fallacious, wrong and cannot be accepted - Decided against petitioner.
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2013 (10) TMI 1204
Offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Rights of the accused - an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate - Necessity to comply with Section 50 of the NDPS Act - Quantification of punishment - Trial Court relied on the case of State of Punjab vs. Baldev Singh [1999 (7) TMI 630 - SUPREME COURT] - Held that:- after noticing three gunny bags, P.W.6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate. When once P.W.6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, we fail to understand as to how principle No.1 in paragraph 25 of the decision reported in Balbir Singh (supra) could be applied. Unfortunately, the trial Court failed to understand the said principle set out in Balbir Singh (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case. The conclusion of the trial Court in having held that Sections 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified. All that the trial Court did was to hold that the version of the prosecution witnesses cannot be discarded merely because they were police officers and that the evidence of P.W.3 was sufficient to support the search and recovery of the narcotic substance from the appellant. The trial Court also held that the version of the defence witnesses was not worth mentioning. It will be highly dangerous to simply affirm the ultimate conclusion of the trial Court in having convicted the appellant and the sentence imposed based on such conviction, as the same was without any ratiocination. It was most unfortunate that the High Court failed to independently examine the correctness of the findings recorded by the trial Court by simply extracting a portion of the judgment of the trial Court, while affirming the conviction - Judgment of the trial Court and the confirmation of the same by the High Court cannot be sustained - Decided in favour of assessee.
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2013 (10) TMI 1203
Valuation - Import of artificial marble slabs - Import of restricted goods without licence - Benefit of Notification No.41 (RE-2008)/2004 - 09 - Held that:- a restricted goods cannot be converted into freely imported goods since import was made without valid license and that is patent from record. Goods in question therefore do not loose the character of restricted goods. By artificial adoption of the value, restricted goods, do not become unrestricted goods. Accordingly valuation adopted by Customs has no basis on law for which declared value rejected by Customs is reversed. Once the restricted goods imported were subject to licence condition which was not fulfilled by the appellant, there is no scope to interfere with the redemption fine and penalty imposed by Customs. Therefore, these two levies are confirmed. Ld. Adjudicating Authority shall verify the challans, if any, showing deposit of duty, redemption fine and penalty and grant consequential relief of refund if any that may arise upon proper verification in accordance with law - Decided partly in favour of assessee.
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2013 (10) TMI 1202
Origin of goods - Imposition of anti dumping duty - Re export of goods on payment of redemption fine - Goods declared as manufactured in Malasia but later found to be Chinese products - Import of one set of plastic injection moulding machine - Sl. No. 12 to Notification No. 47/2009-Cus. dated 12.5.2009 - Held that:- the veracity of any document is also depending upon the contents of that document. It is seen that the country of origin certificate as produced by the importer has not specifically certified the goods in question are origin of Malaysia. The expression produced and processed as mentioned in the certificate are different and distinct in nature. Apart from that, the time of examination of the machines by the Customs officers, it is seen that the goods were manufactured in China by M/s. Ningbo Bole Import & Export. Co. Ltd. China on the basis of the technical literature and marking on the machines. Serial No. 12 to Notification No. 47/2009-Cus. dated 12.5.2009 provides that goods manufactured in China, even if exported from a country other than China, it would be liable for anti-dumping duty. Goods were not prohibited for imports - Since, the goods were liable for confiscation under Section 111(m) of the Customs Act, 1962 the same has to be allowed for redemption even for the purposes of re-export - Court allow the re-export of the impugned goods on payment of redemption fine and penalty imposed by the LAA under Section 125 of the Customs Act, 1962 and under Section 112(a) ibid respectively. I also uphold the penalty imposed on Shri Chandradeep Baid, Managing Partner of the importer's firm under Section 114AA - Decided partly against Revenue.
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2013 (10) TMI 1201
Mis-declaration of Goods Undervaluation of goods - Waiver of Pre-deposit Held that:- The adjudication based on the materials recovered from a different importer and used against appellant - Present appellant has not suppressed the import value and there was no mis-declaration - Perused the gravity of the order as to the untruthful disclosure which made appellants application dismissed before settlement Commission - Invoices of the import resulted with undervaluation from the incriminating document recovered in the course of the proceeding - Keeping in view the financial difficulty expressed as well as the appropriation and encashment of Bank Guarantee stated, the appellant is directed to deposit the amount in two equal installments Upon such submission rest of the duty to be waived till the disposal Partial stay granted.
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2013 (10) TMI 1200
Re-export - Benefit of Notification No.158/95 - violation to the condition of Notification No.158/95-Cus dated 14.11.1995. The appellant although re-imported the goods on 14.12.2011 did not make application within 6 months thereof Held that:- During pendency of appeal to ascertain reason of delay, it is only possible to state that there should not be withholding of goods by the Customs for re-export, because authority by an order did not bring out loss of identity of the goods earlier exported meant to be re-exported - Execution of the Bond and Bank Guarantee has already been en-cashed as is revealed by adjudication order. Whether the re-export is a new export or the same goods earlier exported on 29.01.2011 and 30th March, 2011 are meant to be re-exported shall be looked into in the course of regular appeal hearing - Present interim order is passed not to withhold the goods further so as to prevent undue hardship to the assessee - re-export allowed.
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Corporate Laws
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2013 (10) TMI 1198
Sanction of scheme of amalgamation - Dispensation from the requirement of convening the meetings of the equity shareholders, secured and the unsecured creditors of the Applicant companies - Held that:- net worth certificate dated 28th May 2013 issued by Sunita Maheshwari and Co., Chartered Accountants. The certificate shows that the pre- amalgamation net worth of the Transferor company is Rs.1,71,81,593/- and the pre and post amalgamation net worth of the Transferee company is Rs.209,09,81,096/- and will be Rs.509,92,22,034/- respectively. Further, post-amalgamation, the value of debt (secured and unsecured creditors) of the Transferee company is Rs.930,04,69,599/- against the value of the assets of Rs.1536,14,90,021/- (at their respective fair values), therefore, the interests of the creditors of either of the Applicant companies will not be adversely affected and in fact will be placed in a better position viz. a viz. their security post amalgamation - Application allowed.
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Service Tax
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2013 (10) TMI 1216
Franchisee Services Bar of Limitation - Assessee contended that the demand was made on the basis of the agreement but the real state of affairs would reveal that the services fall under the category of Intellectual Property Rights Service - Held that:-The demand of tax on the franchisee service is based on the agreement - Prima facie, the tax is payable as per the agreement between the applicant and other persons - The submission of the learned counsel on the limitation aspect would be examined at the time of appeal hearing - applicant was directed to deposit a sum - Upon such deposit, pre-deposit of the balance dues stand waived and recovery thereof stayed during the pendency of the appeal Partial stay granted.
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2013 (10) TMI 1215
Stay Application decided Ex-parte Held that:- The observation of the Tribunal that the balance of convenience was against the writ petitioner, is unsupported by reasons - Without going into the question of whether the order ought to have been passed ex parte, the ex parte order set aside without prejudice to the rights and contentions of the respective parties - Tribunal directed to decide the application afresh in accordance with law after giving the petitioner and the department reasonable opportunity of hearing Decided in favour of Petitioner.
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2013 (10) TMI 1214
Valuation - value of free services provided during warranty period - inclusion of cost of parts / spares in the value Waiver of Pre-deposit - Revenue was of the view that the goods were required for providing services and disputed that cost of such parts would form part of the value of taxable service Assessee contended that the Revenue has demanded service tax considering the value of parts as reimbursable expenses as per Rule 5 of the Service Tax Valuation Rules and contend that this rule has been struck down - Held that:- Prima facie materials consumed in providing service as in re-treading of tyre was different from parts replaced as in servicing of vehicles because in the matter the transaction for the material is easily discernible as distinct - We take note of the decision of the Apex Court in the case of they relied on the decision of the Hon. Apex Court in the case of Bharat Sanchar Nigam Ltd. Vs UOI [2006 (3) TMI 1 - Supreme court] in a composite transaction involving both supply of material and providing of service the state governments and the central government can tax only the respective aspects falling within its legislative competence and both the governments cannot levy tax on the same aspect Pre-deposits was waived till the disposal the of the appeal Stay granted.
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2013 (10) TMI 1213
Erection, installation and commissioning service or manufacturing activity - Waiver of Pre-deposit Held that:- In the appellants own case M/s Neo Structo Construction Ltd. Versus CCE & C Surat I and vice versa. [2010 (3) TMI 252 - CESTAT, AHMEDABAD] has held that fabrication of structures at various sites would amount to manufacture and hence will not fall under the category of erection, installation and commissioning and no Service Tax liability arises - The applications for waiver of pre-deposit of amounts involved are allowed and recovery thereof stayed till the disposal of appeals Stay granted.
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2013 (10) TMI 1212
Renting of immovable property service - Ex-parte order - Held that:- The factual matrix is that the appellant herein, being a municipal corporation, has not filed any reply to the show cause notice which has been received by them. The said show cause notice is raising a huge demand. The appellant, being a municipal corporation, should have been more alert and due diligence should have been done by them at least filing reply to the show cause notice, contesting the matter wherever they feel so. In the absence of reply to the show cause notice, the adjudicating authority was constrained to pass an order despite the hearing notices being given to the appellant and not being attended to. In our view, the non-cooperative attitude is very clear from the fact that they have been given personal hearing for 4 times and 2 times at their request. Be that as it may, we are still of the view that before coming to a conclusion that huge amount of Service Tax liability arises and its consequences, it requires that at least a reply, which needs to be filed, be considered by the adjudicating authority. To our mind, the issue needs reconsideration by the adjudicating authority after the reply is filed by the appellant - appellant being non-cooperative, they need to be put to some condition so that they file a reply and appear before the adjudicating authority as and when the adjudicating authority grants a personal hearing. - matter remanded back subject to pre-deposit of Rs. 30 lakhs - Decided in favor of assessee.
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2013 (10) TMI 1211
Demand - Section 65(88) - Real Estate Agent service - suppression of facts - ex-parte order of Commissioner (Appeals) - On behalf of the appellant, it is contended that he did not receive notice of hearing - Held that:- it is clear that the consultants of the appellant were aware that the hearing of the stay application could be scheduled to 28.12.2011, as requested by them. The appellant however asserts that no fresh notice of rescheduled hearing on 28.12.2011 was received prior to that date - prima facie no infirmity either in the order of the Commissioner (Appeals) dated 28.12.2011 (directing pre-deposit of tax and interest) as a condition for waiver of pre-deposit of the penalty, nor with the order dated 17.1.2012 dismissing the appeal for failure of pre-deposit, we are inclined to consider the plea of the appellant for another opportunity to permit him to pursue the appeal against the adjudication order dated 26.8.2011 on merits, before the Commissioner (Appeals) - matter remanded back subject to deposit of entire demand of service tax with interest.
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2013 (10) TMI 1210
Appropriate rate of tax - Works Contract Service - whether the applicable rate of service tax would be rate in force at the time of realisation of the consideration or would it be the rate of tax which was in force at the time of the rendition of the taxable service - Held that:- Service Tax is leviable on the rendering of services. Therefore, it is the rate prevalent on the date of rendering of the service, which is relevant for levy of Service Tax. The Board's instruction and also the decision of the Tribunal in the case of Ashok Kumar Jain (2012 (9) TMI 202 - CESTAT, NEW DELHI) confirm this view. Recently, the Hon'ble High Court of Delhi in the case of Ratan Singh Builders Pvt. Ltd. [2013 (5) TMI 450 - DELHI HIGH COURT] held that the rate that should be applied for levy of Service Tax is the rate prevalent on the date of rendering the services and not the rate applicable on the date of receipt of payment. Following these decisions, which apply to facts of the present case - Decided in favour of assessee.
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2013 (10) TMI 1209
Demand - Incentives amount received from ICICI bank for utilizing their premises for lending activities - Held that:- demand for extended period could not have been invoked in this case on prima facie basis. However, in view of the fact that for the demand invoking larger period, the appellant has been required to deposit 25% of the demand, we consider it fair that the appellant should deposit service tax within the normal period with interest. Subject to fulfillment of this requirement within six weeks and report compliance on 22/08/2013, the requirement of predeposit of the balance adjudged dues is waived and stay against recovery is granted during the pendency of appeal - Decided against assessee.
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2013 (10) TMI 1208
Valuation - Commercial or industrial construction service - inclusion of cost of material - Held that:- appellant has been able to show that the materials have been sold and have been assessed to VAT. Notification No.12/2003-ST requires sale of materials and evidence for sale of materials. In our opinion, appellant has been able to make out a prima facie case that the materials shown by them as sales satisfies the requirements of the Notification. Needless to say that the final decision will depend upon detailed consideration of statutory provisions, relevant VAT provisions, invoices issued, agreement between the parties etc. Since the appellant has made out a prima facie case on merits,, we consider it appropriate that there shall be waiver of predeposit. - stay granted.
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2013 (10) TMI 1207
Waiver of pre deposit - Cable service - Held that:- entire amount of service tax with interest has been deposited after taking into account the CENVAT credit admissible and in view of the fact that there are decisions taking a view that CENVAT credit would be admissible subject to availability of documents and eligibility in cases where the duty/service tax has not been paid, we consider that the amount of service tax deposited after adjusting the CENVAT credit would be sufficient for the present purpose. We also take note of the fact that 25% of the penalty also has been paid and also appellant is challenging the penalty - amount deposited is sufficient for the purpose of stay. - stay granted.
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Central Excise
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2013 (10) TMI 1199
Waiver of Pre-deposit - Discharge of Duty Liability on Ghutkha under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rule, 2008 for actual days of use Held that:- If a assessee is able to forecast his place of manufacturing of Ghutkha and use few out of the machines which are installed in his factory and does not intend to use other machines or manufacture of Ghutkha, he cannot be directed to pay duty liability on all the machines which are installed and later on claim an abatement Relying upon Rajat Industries Pvt. Ltd. Vs. CCE, Delhi [2013 (1) TMI 250 - CESTAT, NEW DELHI] - no excise duty can be imposed under PMPM Rules unless there is production or manufactured goods under the Excise law - Prima facie Pre-deposit of the duty liability, interest and penalties waived till the disposal Stay granted.
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2013 (10) TMI 1197
Cenvat Credit - Bagasse emerged as waste - Applicability of Rule 6 for production of exempted and non-dutiable goods Held that:- Following Balrampur Chini Mills Ltd. vs. Union of India [2013 (1) TMI 525 - ALLAHABAD HIGH COURT] - bagasse is a waste product and no more duty will be imposed over it - Bagasse and 'press mud' are not final products of the manufacturer - Bagasse is classified under sub-heading 2303 20 00 of Central Excise Tariff Act - As per Rule 6 of the CENVAT Credit is availed on the inputs which are used in the manufacture of both dutiable and final products, then an amount equal to 10% (upto 6th July, 2009) or 5% (w.e.f. 7.7.2009) of the sale value of exempted final products is required to be paid - neither the penalty nor the interest can be charged from the petitioners, in view of the fact that the petitioners are not liable to duty either by payment or by reversal in respect of bagasse sold by the petitioner - As the petitioners have paid the entire duty and interest under protest, the entire deposited amount shall returned to them Decided against Assessee.
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2013 (10) TMI 1196
Validity of Pre-deposits ordered - classification of Denatured Ethyl Alcohol and Ethyl Alcohol (rectified spirit) out of duty paid Molasses. - Whether the Tribunal was correct in directing the appellant to deposit an amount of Rs.34 lakhs for hearing the appellant's appeal on merits when the issue in dispute is covered in appellant's favour by decision of the Tribunal in the matter of Ugar Sugar Works Limited vs. Commissioner of Central Excise [2007 (4) TMI 31 - CESTAT,BANGALORE ] Held that:- In 2005 the Central Excise Tariff Act 1985 was restructured The case of the revenue is that prior to restructuring of the tariff, Ethyl Alcohol was an excisable goods as it found mention in the tariff but not after restructuring of the tariff. The Tribunal in the matter of Ugar Sugar Works Ltd. seems to have dealt with the period post 2005. When the basic defence of the appellant is the decision of Tribunal in Ugar Sugar Works Ltd., the Tribunal ought to have dealt with the same - This is particularly so as it goes to the root of the dispute order set aside and the Tribunal is directed to decide the stay application afresh Decided in favour of Assessee.
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2013 (10) TMI 1195
Condonation of delay Delay of 146 days Held that:- Following M/s Victory Impex V/s Commissioner of Central Excise, Ludhiana and another [2013 (6) TMI 117 - PUNJAB & HARYANA HIGH COURT] - The delay occasioned on account of filing of the writ petition to be condoned Decided in favour of Petitioner.
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2013 (10) TMI 1194
Extension of Period of Stay beyond 365 days Interpretation of Section 35-C - Effect of Amendment u/s 35-C of Central Excise Act 1944 - Whether the CESTAT has erred in granting waiver of pre-deposit of assessed demand in favour of the respondents during pendency of the appeal Held that:- the Judgemetn in Kumar Cotton Mills Pvt. Ltd. [2005 (1) TMI 114 - SUPREME COURT OF INDIA] cannot be interpreted to give powers to the Tribunal to extend the order of waiver of pre-deposit indefinitely. - Such an order is likely to be misused by the assessee. Entire object and purpose of insertion of sub-section 2A in Section 35C by Section 140 of the Finance Act, 2002 (20 of 2002) w.e.f. 11.5.2002 and third Proviso by Finance Act, 2013 will stand defeated, if the waiver of pre-deposit is granted indefinitely the appeal is disposed of with directions to the CESTAT to decide the appeal expeditiously and if possible within a period of six months from the date of the extension The waiver of pre-deposit will continue to be valid upto the period of six months from its last extension dated 3.6.2013. - Decided in favour of Revenue.
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2013 (10) TMI 1193
Application for Rectification u/s 35C(2) of the Central Excise Act, 1944 Held that:- It is an admitted position that what has been recorded by the Tribunal is the correct record - The Tribunal has noted at more than one place that the ground on which the application for rectification was moved, was not advanced either in the oral submissions or for that matter, in the written submissions - the order of the Tribunal declining to entertain the application for rectification does not suffer from any error - There was no error apparent on the face of the order of the Tribunal which would have justified the exercise of the jurisdiction under Section 35C(2) of the Central Excise Act, 1944 - The appeal does not disclose any substantial question of law Decided against Appellant.
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2013 (10) TMI 1192
Interpretation of eligibility of CENVAT Credit Waiver of Pre-deposit of CENVAT Credit and penalty under Rule 15(2) of CC Rules, 2004 r.w Section 11AC of the CE Act - Held that:- Following Vandana Global Ltd. vs. CCEX, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - This Tribunal has been taking a consistent view by allowing stay petition of the assessee where extended period of limitation is involved but directed predeposit, wherever demand is for normal period of limitation - the Applicant are directed to make amount as pre-deposit of Rs.50,000 upon such submission the balance dues would stand waived and its recovery stayed during pendency of the Appeal - Partial Stay granted.
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2013 (10) TMI 1191
Clandestine Removal of goods - Waiver of pre-deposit of CENVAT Credit and Penalty u/s 11AC of the CE Act r.w Rule 15(2) of the CC Rules - Revenue was of the view that the Applicant though received the CI Moulds and availed the CENVAT Credit, but instead of utilizing, cleared the same clandestinely in the guise of captive consumption Held that:- Prima facie the Applicant were maintaining the Mould Register, wherein receipt/consumption of the CI Moulds were duly entered - after receipt of the CI Moulds, the same were utilized in the manufacture of finished goods namely, MS ingots and in the process of manufacture, the CI moulds were exhausted, and ultimately, the same were melted along with other raw materials for manufacture of the finished goods - Prima facie the finding of the ld. Commissioner that since the CI moulds were not available at the time of visit of the audit officers could not be accepted - Stay granted.
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2013 (10) TMI 1190
Waiver of pre-deposit of CENVAT Credit and Penalty under Rule 15 of the CC Rules r.w. Section 11AC of the CE Act - Held that:- The Applicant has claimed the CENVAT Credit on the three items namely, PSC Railway Sleeper, Rails and Electrical items treating them as capital goods - the definition of capital goods in Rule 2(a) of the CENVAT Credit Rules,2004 has to be applied as the period involved i.e; from January, 2009 to April, 2009 and not the provisions of Rule 57Q of the erstwhile Central Excise Rules, 1944 - the Applicant could not able to make out a prima facie case for total waiver of the pre-deposit of the dues - the Applicant is directed to make a pre-deposit of 25% of the CENVAT Credit - the balance dues would stand waived and its recovery stayed during pendency of the Appeal Partial stay granted.
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2013 (10) TMI 1189
SSI Exemption Notification No.08/2003 branded goods - rural area or not - Waiver of Pre-deposit of Duty and Penalty u/s 11AC - Held that:- the certificates produced now by the Applicant, even though not before the lower authorities, show that the area where the Applicant manufactured the branded goods, had been certified to be a rural area - Since the certificates were issued by the same authorities there was force in the argument that the area where they manufactured the branded goods, prima facie, has to be treated as a rural area - they would be eligible to the benefit of Notification No.08/2003 - the Applicant could able to make out a prima facie case for total waiver of the dues - all dues waived and its recovery stayed during pendency of the Appeal - Stay granted.
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2013 (10) TMI 1188
Valuation - After sales service - Service Discount in lieu of the Guarantee:- Held that:- The issue of including free service/ after sales services rendered by the dealers to assessable value is no more res-integra, when there is no after sales flow of consideration from the buyers of the goods to the manufacturer Following Tata Motors Limited vs. UOI [2012 (9) TMI 244 - BOMBAY HIGH COURT] - there is no evidence on records that any of the after sales money consideration has flown back from the ultimate buyer of the goods to the manufacturer - appeal filed by the appellant is allowed by setting aside the Order Decided in favour of Assessee.
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CST, VAT & Sales Tax
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2013 (10) TMI 1218
Works Contract - Whether activity of construction / development by a Builder would constitute Work Contract in certain circumstances - Held that:- Construction of flats on its own can not be tanable as work contract under U.P.T.T. where the right title and interest in the construction continue to remain with the developer mere payment term would not alter the nature of transaction - particular unit is not resold but retained by the Appellants, there would be no works contract to that extent. But so long as there is no termination the construction is for and on behalf of purchaser. Therefore, it remains a works contract within the meaning of the term as defined under the said Act. It must be clarified that if the agreement is entered into after the flat or unit is already constructed, then there would be no works contract. But so long as the agreement is entered into before the construction is complete it would be a works contract - Following decision of ASSOTECH REALTY PVT. LTD. Versus STATE OF U.P. [2007 (3) TMI 32 - HIGH COURT , ALLAHABAD] - Decided against assessee.
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2013 (10) TMI 1217
Rectification of mistake - Jurisdiction of Commissioner - whether Section 54 of the VAT Act which deals with powers of rectification of mistakes by the Commissioner and the Appellate Board is attracted in the present case or not - Held that:- Commissioner may rectify its order for correcting any clerical or arithmetic mistake or any error arising therein from any omission. In the present case, we find there is neither any clerical nor any arithmetical mistake, there appears to be even no error arising from any omission. On the other hand in this matter till the passing of the impugned order, the relevant documents were not filed by the petitioner. Therefore the Assessing Officer has rightly observed that the provision of rectification is not attracted in the matter - Assessing Officer has committed no error in not exercising the jurisdiction of rectification in the facts of the present case - Decided against assessee.
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Indian Laws
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2013 (10) TMI 1206
Accommodation after appointment - Accommodation to retired officers employed after retirement - Held that:- It appears that there are large number of Administrative Tribunals which are required to dispense justice to a large number of persons in the State of Maharashtra. Apart from Sales Tax Tribunal, there are other Tribunals and it appears that so far the policy of the State Government is not to give official accommodation to members of such Tribunals if they are retired Administrative Officers / Police Officers / Judicial Officers. Official accommodation is being provided to only those who are in service before reaching the age of superannuation. This Court fails to understand why the State Government should not provide official accommodation to the members of Administrative Tribunals even if they have retired and are now employed after their retirement - The State Government shall therefore consider providing official accommodation to the members of Administrative Tribunals even if such members are employed after their retirement from Administrative Service / Police Service / Judicial Service - Decided in favour of Appellant. Shortage of employees - Held that:- against the strength of 10, there are only 3 persons manning the post of President and members of the Maharashtra Sales Tax Tribunal at Mumbai - retired Administrative Officers / Police Officers / Judicial Officers would be willing to accept the assignment only if they are given official accommodation and, therefore, let the State Government first decide the question of providing official accommodation to the members from amongst the retired persons - Decided in favour of Appellant.
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