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GST
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2023 (9) TMI 1171
Levy of penalty order and pre-deposit amount equal to penalty - Part B of the E way bill as required under Section 68(3) of the Act, 2017 and Rule 138 (1), (2), (3) of the Rules, 2017 not submitted - HELD THAT:- In the facts of the present case, at the time of search of the vehicle of the petitioner, Part B was not filled up but the time driver filled up Part B in the presence of the Officer and hence there was no malafide intention on the part of the petitioner. Accordingly, proceedings under Section 129 of HGST/CGST Act should not have been initiated, as per circular dated 14.09.2018 (P-6). The object of circular dated 14.09.2018 was that in case of circumstances as detailed in the circular, which were procedural in nature and there no intention of misleading the transfer of goods, the proceedings should not have been initiated under....... + More
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2023 (9) TMI 1170
Maintainability of petition - availability of alternative remedy of appeal - Inadmissible ITC - Passing on fraudulent ITC to the petitioner without payment of tax - HELD THAT:- The present writ petition deserves to be dismissed as the petitioner has alternative remedy of filing an appeal against the impugned order. The only ground taken for not filing appeal is that before the Appellate Authority, the petitioner will have to deposit 10 percent of the disputed amount as per Section 107 (5) of the Act. The grievance of the petitioner before this Court is that as per copy of ledger book (P-5 and P-6), the petitioner is not liable to pre-deposit 10 per cent of the disputed amount. However, the petitioner can take all the pleas before the Appellate Authority and the Appellate Authority can consider the question of pre-deposit of amount, after examining the ledger book. Petition dismissed.
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Income Tax
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2023 (9) TMI 1169
Bogus purchases - addition AO made has primarily relied upon some information received from the office of the Director General of Income Tax (Investigation), Mumbai - as decided by HC [ 2021 (12) TMI 21 - BOMBAY HIGH COURT] respondent has discharged its onus by producing the books of accounts, stock register, stock tally and also filed various documentary evidences such as statements of banks and once respondent has discharged this burden, the onus shifts to the Revenue and the AO has not conducted any independent inquiry or further verification of the records produced before him - HELD THAT:- No justifiable reason for condoning the delay. Hence, the Special Leave Petition is dismissed on the ground of delay.
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2023 (9) TMI 1160
Penalty proceedings u/s 271AAB - additional income admitted by the assessee - suo-moto admission by assessee - as assessee contended before the learned CIT(A) that no incriminating material was found during the search and the additional income was admitted to buy peace and to avoid litigation and the same is not a tangible income as the said income has not been credited in its books nor has come out of any incriminating evidence seized during the course of search - HELD THAT:- In this case, from the beginning the assessee has been claiming that only to purchase piece, he has been disclosing additional income. As rightly pointed out by the learned CIT(A), the income disclosed by the assessee is not represented by any of the categories mentioned in clause (c) of explanation to section 271AAB inasmuch as the assessee has never taken any....... + More
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2023 (9) TMI 1159
Rectification of mistake - adjustment made u/s 143(1)(a)(vi) to the returned income in respect of presumptive income declared u/s. 44AD - HELD THAT:- As the position is that the assessee filed return declaring total income u/s. 44AD; the gross receipts for the application of section 44AD exceeded the amount as per Form No.26AS; and the AO issued intimation by invoking clause (vi) of section 143(1)(a). In such circumstances, the Intimation, making adjustment by invoking clause (vi) of section 143(1)(a), is evidently debarred as violating the prescription of Instruction No.10/2017, which is binding on the Departmental Officers. We, therefore, hold that the ld. CIT(A) was not justified in confirming the disallowance contrary to the mandate and ambit of section 143(1)(a)(vi) - The impugned order is overturned to this extent. Once it ....... + More
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2023 (9) TMI 1158
Income taxable in India - cellular roaming charges - India-UK DTAA under Article 13(3) - Royalty - Assessee is a non-resident telecommunication service provider, primarily engaged in the business of providing mobile and broadband services along with various other ancillary services such as text, media messaging, games, music, video and data connections in the United Kingdom - AO held that the amount received by Assessee is covered within the scope of process and taxable as royalty under the Act as well as India-UK DTAA - HELD THAT:- Nowhere it has been elaborated by the ld. AO how the right to use process has been allowed by the assessee to VIL. It is a call connectivity services which has a standard process employed by various telecom operators around the world. In fact, VIL already possessed the process used for providing roaming s....... + More
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2023 (9) TMI 1157
Reopening of assessment u/s 147 - addition was not made in respect of undisclosed in the assets of the assessee and AO made the addition in respect of loans - Assessee challenged the legality of the assessment framed on the ground that the additions as envisaged in the reasons recorded u/s 148 were not made in the assessment framed and therefore the AO has no jurisdiction to make other additions in respect of loans from two parties - HELD THAT:- AO has no jurisdiction to make any other addition when the issues which were subject matter of the reasons recorded of Section 148(2) of the Act were not added in the assessment order. The case of the assessee is supported by the decision of Coordinate Bench in the case of Shree Prakash Chhawchharia (HUF) [ 2021 (6) TMI 234 - ITAT KOLKATA] wherein the Hon'ble Coordinate Bench has held th....... + More
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2023 (9) TMI 1156
Rectification application us 154 - Credit of TDS denied as barred by limitation - AO raised a demand in intimation u/s 143(1) of the Act without giving credit of the amount of the TDS - HELD THAT:- As assessee in the return of income mistakenly reported the amount of TDS as advance tax. But in the total, no excess claim of the tax has been made by the assessee. We do not understand why the AO raised a demand in intimation u/s 143(1) of the Act without giving credit of the amount of the TDS which was already appearing in form no. 26AS. A copy of said form has been filed by the assessee before the AO alongwith rectification application. Ignoring the TDS credit available to the assessee, and then raise the demand is abuse of the authority. The order of the AO passed u/s 143(1) of the Act is in gross negligence of his duty. In the ca....... + More
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2023 (9) TMI 1168
Dismissal of appeal for non-prosecution - non filing of compulsory e-filing of appeal despite notice - assessee failed to appear before the Tribunal on the date of hearing - no request for further date - HELD THAT:- Having heard learned counsel for the parties and also considered the record, this Court is of the opinion that larger interest of justice require that the appeal against the assessment order for A.Y 2012-2013, completed by order issued by the AO i.e. Income Tax Officer, Ward- 7(2)(4), Bangalore should be restored. Accordingly, the Appeal is restored to the file of the Commissioner of Income Tax (Appeals)-7, Bengaluru. The said authority shall issue notice at least two weeks advance notice to the appellant to enable her to prosecute the appeal effectively.
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2023 (9) TMI 1167
Treatment of foreign exchange gain/loss by categorizing it as operating income/ operating loss - HELD THAT: As appellant cannot but accept that it stands covered against the appellant/revenue by a decision titled Pr. Commissioner of Income Tax-3 v. Fiserv India Pvt. Ltd. [ 2016 (1) TMI 1276 - DELHI HIGH COURT] TP Adjustment - comparable selection - Tribunal excluding two comparables i.e., Wipro Technologies Services Ltd. and Infosys Ltd - HELD THAT:- As it cannot be disputed the fact that assessee is in the business of providing software development services. The two comparables i.e., Wipro Technologies Services Ltd. and Infosys Ltd. are in the business of not only software development services but also in the sale of software products. Clearly, since according to the Tribunal the segmental information was not available, the....... + More
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2023 (9) TMI 1166
Assessment u/s 153A - Addition u/s 68 - ITAT deleted the addition - HELD THAT:- Tribunal has taken the correct view. Sans the incriminating material, no addition could have been made by the AO with regard to the AY in issue, as it was a case of completed assessment. This issue stands covered by the judgment rendered by the coordinate bench of this court in CIT vs. Kabul Chawla,[ 2015 (9) TMI 80 - DELHI HIGH COURT] This judgment has received the imprimatur of the Supreme Court in Principal Commissioner of Income Tax vs. Abhisar Buildwell, [ 2023 (4) TMI 1056 - SUPREME COURT] - No substantial question of law arises for consideration.
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2023 (9) TMI 1165
Reopening of assessment - information received by the AO from the investigation wing in the form of statement recorded in the case of Sh. Madan Lal Pahuja - as alleged assessee had made bogus purchases by inflating the expenses and thereby suppressed the profits - HELD THAT:- An FIR had been registered against Madan Lal Pahuja on 13.09.2009. On 13.02.2023, learned counsel for the appellant sought time to get instructions whether any steps were taken with respect to the business transaction with bogus bills of Madan Lal Pahuja, who had been acquitted in the criminal trial. Today, as appellant informed that no steps were taken with respect to business transaction with bogus bills against Madan Lal Pahuja. In the present case, initiation of reassessment proceedings on the basis of the statement given by Madan Lal Pahuja and without gi....... + More
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2023 (9) TMI 1164
TP Adjustment - Direction issued by the Tribunal to exclude Avani, Wipro, E-Zest and Persistent - HELD THAT:- Assessee is in the business of software development services - HELD THAT:- We find that insofar as Avani, Wipro, and Persistent are concerned, the Tribunal has returned a finding of fact that no segmental data is available. These three comparables are in the business of software products and services and no segmental data is available. The finding of fact recorded by the Tribunal vis- -vis Avani is that it deals in software products and services, there is a categoric finding that no segmental data is available and, therefore, it is not a good comparable. Likewise, the same position was obtained vis- -vis Wipro. Wipro also, according to the Tribunal, deals in software products and services and no segmental data, according ....... + More
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2023 (9) TMI 1163
Maintainability of appeal against statutory claims - Corporate Insolvency Resolution Process commenced - HELD THAT:- As per improved corporate resolution plan, which was approved by the NCLT there was no provision made, inter alia, for statutory claims. Having regard to the fact that the claims which are the subject matter of the present appeal concern the period prior to the approval of the resolution plan by the NCLT, in which no provision has been made for statutory dues, the continuation of this appeal would serve no purpose. The court in these matters adopts a clean slate approach, and therefore, this appeal would have to be closed.
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2023 (9) TMI 1162
Addition u/s. 56(2)(vii)(c) - additional 82,200 shares allotted to assessee due to renouncement of rights by wife father of the assessee - HELD THAT:- As the provisions of Sec. 56(2) would not be applicable to the issue of new shares which is also submitted by the explanatory notice to the Finance Bill, 2010, wherein, it is clarified that Sec. 56(2)(vii)(c) of the Act ought to be applied only in the case of transfer of shares. It is trite law that allotment of new shares cannot be regarded as transfer of shares. Therefore, in order to apply the provisions of Sec. 56(2)(vii)(c), there must be an existence of property before receiving it. As per advanced Law Lexicon Dictionary, the term receive has been defined as To receive means to get by a transfer, as to receive a gift, to receive a letter or to receive money and involves a....... + More
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2023 (9) TMI 1161
Disallowance of exemption u/s. 10(38) - Bogus LTCG - SEBI had passed an interim order in relation to this scrip by MFTL holding that preferential allottees and promoters related entities had, with the aid of exit providers, misused the exchange mechanism to exit at a higher price - Principal CIT (A) and the Tribunal found that the SEBI report based on which the AO had made additions was an interim report and in the final report there was no adverse finding. SEBI in the final report had not made any adverse findings - HELD THAT:- As verified that the payment for purchase of shares was made through banking channel, shares were in demat account of the appellant for more than 12 months before they were sold through BOLT of BSE and the proceeds have been received through banking channel, STT has been paid. The main stand of the AO whic....... + More
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2023 (9) TMI 1155
Income recognition - Addition towards profits/gains earned on transfer of land pertaining to villas as sold - Year of assessment - Assessee argued that entire amount of sale consideration was not disclosed in the turnover, but it reported turnover of only Rs. 2.91 crores - HELD THAT:- As we are of the considered opinion that factual verification as to how much of sale consideration that was received during the financial year 2012-13 is necessary. Apart from this, from the sale deeds, the copies of which are found in the paper book filed before us clearly reveal that the construction activity on relevant plots had not reached even the lintels level. Observations of AO that the entire construction work was over and vacant possession of the villas was handed over to the respective buyers is, therefore, factually incorrect. When the s....... + More
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2023 (9) TMI 1154
Nature of expenses - revenue v/s capital/deferred revenue expenditure - expenses incurred by the assessee consisted of exhibition expenses, foreign local travelling, telephone calls etc. - as per AO these expenses have resulted in building up a benefit of intangible nature that may accrue in future and the above said expenditure is capital in nature - CIT(A) observed that these expenses can at best be treated as pre-commencement expenses made by the company in order to explore the market abroad - HELD THAT:- The fact that the assessee has started manufacturing of packaging machines would show that the business of the assessee has been set up and even commenced. It is well settled proposition of law that the revenue expenses incurred after the setting up of the business is allowable as deduction, even if the business has not comme....... + More
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2023 (9) TMI 1153
Validity of reassessment - Notice beyond period of four years - reason to believe - share transactions - HELD THAT: - A.O has recorded the reasons without any tangible material/ fresh material except charges based on the information. The assessee has purchased shares in the financial year 2007-08 The Ld.AR submitted that the information of sale and purchase of shares was already filed on record vide letter in the original assessment proceedings U/sec 143(3) of the Act and the A.O after verifying the facts and information has passed order on 23-03-2015. Therefore the reopening of assessment is based on the same set of facts and is only a change of opinion and no inquiry or independent investigation by the A.O. As the notice issued by the A.O falls beyond the period of time limit specified and the assessing officer has to show/highlig....... + More
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2023 (9) TMI 1152
TP Adjustment - Comparable selection - exclusion of Tata Elxsi and Mind Tree Ltd., from the final set of comparable companies on the basis of turnover filter exceeding more than Rs. 200 crores - HELD THAT:- We do not find Tata Elxsi and Mind Tree Ltd., and as such, there is no question of adjudicating these 2 comparables on the basis of turnover filter exceeding more than Rs. 200 crores. Issue regarding to inclusion of iSN Global Solution Pvt. Ltd., as comparable while determining the ALP of international transaction after considering the export turnover filters. Accordingly, this issue is remitted to the file of AO/TPO for fresh consideration.
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2023 (9) TMI 1151
Validity of TP Adjustment against non existent entity - scheme of amalgamation approved - DRP passed order in the name of non-existent company - HELD THAT:- It is clear from the draft assessment order that the AO was known the fact of change of name of company after amalgamation, but still he has passed the order in the name of old company. The assessee informed the TPO regarding the change of name of assessee and there were series of events in which the assessee made the correspondence with the department in the name of new company. However, all the revenue authorities i.e., the AO, TPO and DRP have passed the order in the name of old company. We are of the opinion that the order passed by the revenue authorities in the name of non-existent company which was in the knowledge of the revenue authority does not survive. Decided against revenue.
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2023 (9) TMI 1150
Addition u/s 68 - Unexplained sundry creditors - CIT(A) deleted the additions - HELD THAT:- It is a case of issue of shares for consideration other than cash for which nothing is brought on record in respect of relevant compliance and documentary evidence under the Companies Act. CIT(A) has not enquired on this aspect which is vital before concluding to give relief to the assessee. Further, identity and creditworthiness of the creditors and the genuineness of the transactions have not been satisfactorily explained as required u/s. 68 of the Act, more importantly, when this information is stated to be the source of investment in the share capital of CMHPL. We set aside the finding given by Ld. CIT(A) and restore the order of AO wherein addition has been made. We also note that even if we presume that the basis adopted by the CIT(A....... + More
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2023 (9) TMI 1149
Validity of re-assessment proceedings - AO received certain information from ITO (Investigation), Pune - As per the said reasons, there was a Sathekhat between assessee and Mr. Phaltane for sale of some land at a total consideration - HELD THAT:- We have perused the copy of the Sathekhat filed by the ld.AR - It is observed that nowhere in the Sathekhat amount of Rs. 1.50 crore is mentioned. Thus, it is clear that the reopening is based on a Sathekhat alleging sale consideration of Rs. 1.50 crore, but said Sathekhat does not mention anywhere the amount of Rs. 1.50 crore. There is no dispute that assessee purchased land from Mr. Phaltane vide registered sale deed dated 18.07.2009 for Rs. 55,00,000/-. The allegation of the AO that land was purchased for Rs. 1.50 crore is without any evidence. Thus, the AO has failed....... + More
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2023 (9) TMI 1148
Penalty u/s 271FA - not filing the Annual Information Report (AIR) for the relevant AY - main contention of AR before the Tribunal was that there is reasonable cause as mandated u/s 273B for not filing the AIR for the relevant AY - ambiguity as to whether the cooperative banks are required to comply with the provisions of Rule 114E - HELD THAT:- It is clear that in terms of Sl.Nos.1 and 2 of the Table under Rule 114E(2) of the Rules, before 01.04.2015 only banking companies or banking institutions (which includes the provisions of section 51 of the Banking Regulation Act, 1949) but not the provisions of section 56 or Part V of the Banking Regulation Act, 1949, that deals with Co-operative Societies were required to file the AIR. The co-operative banks have been brought within the ambit of Sl. Nos.1 to 4 of Table under Rules 114E(2) aft....... + More
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Customs
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2023 (9) TMI 1147
Refund of IGST - exemption from certain capital goods from the whole of the duty of customs leviable under the Customs Tariff Act - HELD THAT:- It is borne on reading the decision in the case of Prince Spintex [ 2020 (2) TMI 1168 - GUJARAT HIGH COURT ], that an identical issue as the one raised in these petitions was decided by this Court considering the policy and the relevant notifications, where it was held that It is held that the amendment of Notification No. 16/2015-Cus vide Serial No.1 of Notification No. 79/2017 dated 13th October, 2017, would also apply to imports made during the period 1.7.2017 to 13.10.2017. Trade Notice 11/2018 dated 30.6.2017 to the extent it is stated therein that under Chapter 5 importers would need to pay IGST is hereby quashed and set aside. All the petition allowed.
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2023 (9) TMI 1146
Provisional assessment - clean energy Cess payable - non-inclusion of the ship demurrage charges in the value - HELD THAT:- It is true that the provisional assessment was sought only for the purpose of ship demurrage charges. However, it is now an well-established legal principle that a assessment which is provisional is provisional for all purposes and at the time of finalization of the assessment, all factors which are necessary for finalization of the assessment must be reckoned. For instance, if the assessment is left open for questions of valuation, and subsequently it is found that the classification also requires a change or some other licencing requirement has to be examined, all these factors must be examined while finalizing the provisional assessment. There cannot be a provisional assessment which is provisional for one purp....... + More
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PMLA
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2023 (9) TMI 1144
Money Laundering - Seeking grant of bail - Practicing chartered accountant (CA) - assisting the co-accused to convert the tainted money into untainted money and connived in the laundering thereto - petition dismissed primarily on the ground that the petitioner has failed to meet the threshold of Section 45 of PMLA - HELD THAT:- As per the law laid down that in Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT ], it has inter alia been held that at the stage of considering the bail application, the court is expected to consider the question from the perspective of whether the accused possessed the requisite mens rea. It was further held that no definite finding is required whether the accused has not committed an offence under the Act. It is a well settled proposition of law that the jurisprudence of bail lays down that t....... + More
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2023 (9) TMI 1143
Legal arrest or not - grounds of arrest need to be orally informed or given in writing - requirement to comply with mandate of Section 19(1) of PMLA or not - violation of fundamental rights - denial of right to consult - HELD THAT:- The reading of Para 458 and 459 which has been relied upon by both the parties makes it clear that the Apex Court in Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT ] inter alia held that so long as the person has been informed about the grounds of his arrest, it is sufficient compliance of the mandate of Article 22(1) of the Constitution. It has also been inter alia held that it is enough if ED at the time of arrest contemporaneously discloses the grounds of such arrest to such person. Thus it cannot be said that the law laid down in V. Senthil Balaji is any way per incurium or irreconcilable ....... + More
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2023 (9) TMI 1145
Money Laundering - applicability of provision of Section 436-A of the Code of Criminal Procedure, 1973 - HELD THAT:- The impugned judgment/order set aside, which had restricted the grant of bail to the appellant for a period of six months, with a direction that the appellant will appear before the trial court and would be released on bail, which is pending adjudication before the Court of Sessions Judge, Khurda, Bhubaneswar, Odisha on terms and conditions to be fixed by the trial court. Application disposed off.
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Service Tax
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2023 (9) TMI 1142
Non-payment of service tax - Business Auxiliary Service - Construction Service - Erection and Painting Service and Goods - Transport Agency Service - non-imposition of penalty under Section 76 of Finance Act - HELD THAT:- The assessee is not disputing the liability towards Business Auxiliary Service, Construction Service GTA Service from 01.06.2007 onwards and the total demand of service tax for those services works out Rs.22,70,491/-. The said demand is confirmed against the assessee along with interest. If any amount is payable by the assesse, the same shall be adjusted as the assessee has already paid an amount of Rs.42,50,000/- during investigation and Rs.14,13,327/ after issuance of show-cause notice. The said amount is to be adjusted against the confirmed demand along with interest. Prior to the period 01.06.2007 as there is....... + More
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2023 (9) TMI 1141
Service tax not paid properly - Business Support Services - non-disclosure of actual value of service in ST-3 returns - service of information and tracking of delivery schedule - Commission/Brokerage income - Miscellaneous income like Amendment Charges, Container Detention charges etc. not shown in ST-3 return - demand of service tax along with equal amount of tax as penalty under Section 78 of the Finance Act, 1994. Service Tax on income arising from providing service of information and tracking of delivery schedule - HELD THAT:- The space for transportation of containerized goods outside the territorial water of the country has been bought by the Appellant company in a bulk and thereafter sold to other companies on principal to principal basis. In this sale they earn a margin of profit over the cost incurred by them on such bulk....... + More
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2023 (9) TMI 1140
Levy of Service tax - part amount/earnest amount - Point of taxation rules - HELD THAT:- As per Rule 4(b)(iii), the point of taxation would be the date of issuing of invoice, which in the instant case is October, 2012. It is also noted that as per section 67A of the Finance Act, 1994, the rate of service tax, the value of a taxable service shall be the rate or value in force or as applicable at the time when the taxable service has been provided or agreed to be provided. It is noted that the appellant and the service recipient had merely entered into a Memorandum of Understanding in March, 2012 for leasing of land, and advance amount was paid to the appellant. The service of provision of leased land was provided in October, 2012. It is also apparent that the invoices for the said provision of service were raised on 23.10.2012. The a....... + More
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2023 (9) TMI 1139
Classification of services - commercial and industrial construction service or works contract service? - services provided to Bharat Heavy Electricals Limited (BHEL) for construction of Thermal Power Plant - HELD THAT:- The appellant is providing the said service along with material, in that circumstances, the appropriate classification of the activity undertaken by the appellant is works contract service , as held by the Hon ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT ], wherein the Hon ble Apex Court has observed that A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. ....... + More
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2023 (9) TMI 1138
Classification of service - Business Auxiliary Service or not - carrying out certain jobs by utilizing the Steam Generating Unit - HELD THAT:- As per the agreement the appellant has to provide various services by utilizing Steam Generating Unit but held by this Tribunal, the said activities does not fall under business auxiliary service prior to 26.05.2008, therefore, demand of service tax under the category of business auxiliary service is not sustainable against the appellant. The appellant is not liable to pay service tax on their activity - impugned order set aside - appeal allowed.
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Central Excise
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2023 (9) TMI 1136
Reversal of CENVAT Credit - formula applied by the appellant for reversing the proportionate credit availed on common input services used in production of the exempted product (electricity) is correct or not - Department is of the view that the amount to be reversed has to be calculated by taking the entire credit (total credit) availed by the appellant - HELD THAT:- The very same issue was analysed by the Tribunal in the case of M/S. TOSHIBA JSW POWER SYSTEMS PRIVATE LTD. VERSUS COMMISSIONER OF GST CENTRAL EXCISE, CHENNAI [ 2023 (6) TMI 543 - CESTAT CHENNAI] where it was held that Total Cenvat Credit for the purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and will not include the Cenvat credit on input/input service exclusively used for the manufacture of dutiable goods. If the interpretat....... + More
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2023 (9) TMI 1135
Restoration of appeal - appeal dismissed for non-prosecution - appellant is not responding to the notices for hearing - HELD THAT:- From the facts, it is observed that the matter is pending only for the reason that appellant/counsel on record is not responding to the notices for hearing issued making it evident that they are not interested in prosecuting this matter any further. In the present case ten times adjournments were given between 2015 to 2019 and twice the orders were passed granting time for cross examination as a last chance and that too at one point of time even a cost was also imposed and even thereafter also when lastly the High Court passed an order with extending the time it was specifically mentioned that no further time shall be extended and/or granted still the petitioner defendant never availed of the liberty....... + More
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2023 (9) TMI 1134
Benefit of N/N. 1/2011 dated 1.3.2011 - credit availed on inputs and input services used in the manufacture of the final products on which the concessional rate of duty is being availed - levy of penalty - HELD THAT:- The appellant manufactures foam and foam products and rubberised coir products. On foam products, standard rate of duty 12% is being discharged and accordingly, credit is availed on all inputs and input services. Foam is also captively used in the manufacture of Rubberised coir mattresses for which concessional rate of duty is availed and therefore, credit cannot be availed as per the exemption Notification No. 1/2011 dated 1.3.2011. The appellant admits the fact that they are aware of the fact that on rubberised coir mattresses, they are not supposed to avail CENVAT credit on inputs and inputs services in as much as they....... + More
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2023 (9) TMI 1137
Seeking permission for withdrawal of SLP - HELD THAT:- The special leave petitions are dismissed as withdrawn, with liberty to file a review before the High Court. Liberty is also granted to the petitioner(s) to challenge the impugned order, in case the decision in the review petition is adverse to the petitioner(s).
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2023 (9) TMI 1132
Valuation - inclusion of drawing, designing and engineering charges collected by the Appellant in the assessable value for the purpose of calculating the Central Excise duty or not - time limitation. Appellant paid service tax on designing and engineering services and not included the same in the assessable value for the purpose of payment of central excise duty. HELD THAT:- When a tax under any statute is assessed and paid as per the requirement of the statute, it must be complied with. Even though the assessee might have paid the tax wrongly under a different tax statute, it does not satisfy the compliance of the statute under which the assessee is rightly required to pay their tax liability. This view has been held by this tribunal in the case of PHOENIX YULE LIMITED VERSUS COMMR. OF CENTRAL EXCISE, KOL-III [ 2018 (7) TMI ....... + More
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2023 (9) TMI 1133
Refund claim - manufacture and clearance of goods in excess of the production capacity as determined by the Assistant/Deputy Commissioner of Central Excise in terms of Rule 5 of N/N. 16/2010-CE - CBEC Circular No.980/4/2014-CX dated 24.01.2014 - HELD THAT:- The said Circular clearly clarifies that duty is to be paid by the assessee in terms of the Chewing Tobacco Unmanufactued Tobacco Packing Machines (Capacity Determination Collection of Duty) Rules, 2010, which has been determined by the adjudicating authority and on that basis the appellant has paid the duty, therefore, if during physical verification production is found more, no duty is payable by the appellant and the said issue also examined by this Tribunal in the case of KAIPAN PAN MASALA PVT. LTD. VERSUS C.C.E. S.T., BHOPAL [ 2016 (7) TMI 1104 - CESTAT NEW DELHI] . As....... + More
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2023 (9) TMI 1131
Reversal of CENVAT Credit - input written off as per Rule 3(5B) of the Cenvat Credit Rules - recovery mechanism - HELD THAT:- During the relevant period, there was no recovery mechanism under Rule 3(5B) of the Cenvat Credit Rules and the explanation which was introduced vide Notification No. 3/2013 dated 01.03.2013 was from 01.03.2013 vide which it was provided that if the manufacturer of goods or the provider of output service fails to pay the amount payable under sub-rules (5), (5A), and (5B), it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT credit wrongly taken. This recovery mechanism introduced from 01.03.2013 cannot be made applicable from the retrospective date and it can be only prospective and this issue was considered in various decisions by the Tribunal wherein it was held that when there w....... + More
