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Showing 161 to 180 of 654 Records

• 2007 (11) TMI 552
  

  Availment of input tax credit for the period from January 2007 to June 2007 reversed - Held that:- Recording the submission of the learned counsel for the petitioner, to adjudicate the factual finding before the appellate authority, the petitioner is at liberty to prefer the statutory appeal along with the payment of statutory tax within 30 days from the date of receipt of a copy of this order and on receipt of the same, the appellate authority shall consider all the points raised in the appeal and pass orders on merits and in accordance with law.

  The letter of the Assistant Commissioner (CT), Fast Track Court, Assessment Circle-I, Coimbatore, addressed to the Branch Manager, Indian Bank, Main Branch, Coimbatore, for realisation of the reversal of VAT for the period between January 2007 to June 2007 is directed to be withdrawn immediately and the Bank Manager, Indian Bank, Main Branch, Coimbatore, is hereby directed not to give effect to the request made by the Assistant Commissioner (CT), Fast Track Court, Assessment Circle-I, Coimbatore. With the above directions, the writ petitions are disposed of.

  ---

• 2007 (11) TMI 551
  

  Whether HDPE/PP fabrics are covered by entry "textile fabrics" given in entry 52 of Schedule A appended to the Punjab Value Added Tax Act, 2005 (as applicable to the Union Territory, Chandigarh) and, therefore, exempt from payment of tax in the Union Territory of Chandigarh?

  Held that:- HDPE figures at serial No. 162 in the list of taxable items under entry 58 of Schedule B. The aforementioned entry 58 under the heading "industrial inputs and packing materials", has been elaborated to include HDPE, which figure at serial No. 162. Once the statute itself has included HDPE as a taxable item then it is not possible for us to take a contrary view that such an item would not be taxable or that such an item has to be considered as textile fabrics including terry towels under Schedule "A", listing tax-free goods. Thus, the argument is wholly without substance and we have no hesitation to reject the same. The other arguments based on the judgment of the honourable Supreme Court would also not advance the case of the assessee-appellant because the external aid like the standardisation by Indian Standard Institute (ISI) could be resorted to in case where there is ambiguity or the item has not been included in the statute. Appeal dismissed.

  ---

• 2007 (11) TMI 550
  
  ... ...
  ... ... ..... e disturbed equally amongst his sons Shri Anil Kumar and Shri Manoj Kumar also stands addressed by the affidavit of Shri Girraj Prasad, grandson of Shri Bhajan Lal since the widow Smt. Narvada Devi resided and messed with Shri Kanhaiyalal, i.e., the assessee and his family. The factum of residing and messing only with one son, i.e., the assessee also stands unrebutted on record. Accordingly, in the light of these unrebutted facts when juxtaposed with the confirmation of the sons of the assessee who also accept the ownership of the said silver bullion received through the grandmother, the case of the Department hinges only on suspicion. In the face of the peculiar facts and circumstances, we are of the view that the addition on account of the silver bullion in the hands of the assessee to the extent of 240 kgs. of silver is not maintainable and the same has to be considered in the hands of his sons Shri Anil Kumar and Shri Manoj Kumar who are the assessees in their own right.

  ---

• 2007 (11) TMI 549
  
  Issues Involved:
  1. Whether the assessee is entitled to the benefit of section 72A(4) in respect of unabsorbed expenditure on scientific research.
  
  Summary:
  
  Issue 1: Entitlement to Benefit u/s 72A(4) for Unabsorbed Expenditure on Scientific Research

  The Department appealed against the order of the Commissioner of Income-tax (Appeals) allowing the claim of unabsorbed loss on capital expenditure on scientific research and development of the demerged company, treating it as accumulated loss/depreciation loss u/s 32(2) and hence to be treated at par for the purpose as contemplated u/s 72A(4) of the Income-tax Act.

  Facts of the case: M/s. Maharashtra Hybrid Seeds Co. Ltd. (demerged company) had unabsorbed depreciation and unabsorbed capital expenditure on scientific research before demerger. Upon demerger, these were allocated between the demerged company and the resulting company, M/s. Mahyco Vegetable Seeds Ltd. (assessee). The Assessing Officer allowed the benefit of section 72A(4) for unabsorbed depreciation but denied it for unabsorbed expenditure on scientific research.

  The Assessing Officer observed that the business loss cannot be equated with the loss on expenditure on scientific research, as the latter is a weighted deduction and not computed under the head 'Profits and gains of business or profession'. Therefore, it does not amount to accumulated loss. The unabsorbed loss on capital expenditure on scientific research cannot be termed as 'depreciation loss' and hence is not covered by section 72A(4).

  The Commissioner of Income-tax (Appeals) decided in favor of the assessee, but the Department appealed to the Tribunal. The Tribunal examined sections 35(4), 32(2), 72, and 72A(4) of the Income-tax Act. Section 35(4) allows unabsorbed capital expenditure on scientific research to be carried forward in the same manner as unabsorbed depreciation u/s 32(2). However, section 72(2) prioritizes the set-off of business losses over unabsorbed depreciation.

  Section 72A(4) allows the carry forward and set off of accumulated loss and unabsorbed depreciation in the case of demerger. The definitions of 'accumulated loss' and 'unabsorbed depreciation' in section 72A(7) do not include unabsorbed capital expenditure on scientific research. Therefore, the benefit of section 72A(4) is not extended to unabsorbed capital expenditure on scientific research.

  The Tribunal concluded that the unabsorbed portion of capital expenditure on scientific research cannot be treated as part of accumulated loss or unabsorbed depreciation for the purpose of section 72A(4). Consequently, the order of the Commissioner of Income-tax (Appeals) was reversed, and the Assessing Officer's decision was restored.

  ---

• 2007 (11) TMI 548
  

  Service Tax – Consulting Engineer (1) Operation and maintenance of power plant (2) Contract between operator and owner (3) Demand not sustainable (4) Constitution of India (job work) - revenue did not file any appeal against the ealier decision of the Tribunal in Rolls Royce Industries Poer (I) Ltd. Versus CCE [2004 (6) TMI 3 - CESTAT, NEW DELHI) - the same has attained finality - Decided in favor of assessee.

  ---

• 2007 (11) TMI 547
  

  Rectification of mistake

  
  
  ... ...
  ... ... ..... very much in India and duty payable by them, on goods manufactured by them is only excise duty. In cases like this, the excise duty is sought to be demanded under proviso to Section 3 with reference to the customs tariff which is only for the purpose of measure of the tax. The duty so demanded with reference to customs tariff is also demand of excise duty under Section 11A. In this case, we are not dealing with the goods manufactured by the appellant which is a 100 EOU. rdquo 5. emsp The basis on which the ROM application has been filed does not survive. The other issues raised by the applicant are on the merits of the case which stands decided and does not arise out of any mistake apparent on record. The acceptance of their prayer would amount to review of the order which is not permissible in an ROM application. The order of the Tribunal is an appealable order. 6. emsp Therefore, the application is devoid of merit and accordingly rejected. (Dictated and Pronounced in Court)

  ---

• 2007 (11) TMI 546
  
  Issues Involved:
  The appeal under section 260A of the Income-tax Act, 1961 against the order passed by the Income-tax Appellate Tribunal regarding the addition made on account of under valuation of closing stock by non-inclusion of excise duty in value of closing stock.
  
  Summary:
  The question raised for consideration was whether the ITAT was justified in confirming the order of the CIT(A) deleting the addition made on account of under valuation of closing stock by non-inclusion of excise duty in value of closing stock. The Assessing Officer had made the addition of excise duty payable on the goods manufactured by the assessee in the computation of the value of the stock. The department relied on the decision of the Supreme Court in CIT v. British Paints India Ltd. [1991] 188 ITR 441. However, the High Court observed that the interpretation of the department was misconceived. The High Court referred to section 145A of the Income-tax Act, which states that the amount of tax, duty, cess, or fee should be included in the value of goods only if it is actually paid or incurred by the assessee to bring the goods to the place of its location. As the excise duty had not been paid by the assessee on the goods in stock since the goods did not leave the premises, there was no justification for adding the excise duty to the price of the raw material. Therefore, the High Court dismissed the appeal, stating that the question raised did not arise out of the facts of the case.
  
  This judgment clarifies the application of section 145A of the Income-tax Act in determining the value of goods for income tax purposes, specifically regarding the inclusion of tax, duty, cess, or fee in the valuation of goods in stock.

  ---

• 2007 (11) TMI 545
  

  Appeal - ‘Aggrieved person’ - Stay/Dispensation of pre-deposit

  
  
  ... ...
  ... ... ..... eing incompetent as the appellant cannot be treated as a legally aggrieved person. Stay Application in A. No. 624-625/07 filed respectively by M/s. Turnkey Software and Shri Rakesh Gupta. 2. emsp After hearing both the sides, we notice that the goods worth Rs. 2,32,96,000/- are admittedly in the custody of Revenue authorities whereas the total amount of duty, fine, penalties etc. imposed on these two appellants work out to be Rs. 1,38,02,931/-. It was, therefore, contended by the learned Counsel of the appellants that the value of the goods in custody of the Revenue is far higher than what is being actually demanded from them and hence, the value of the said goods in Revenue s custody may be treated as pre-deposit for the purpose of hearing their appeals. In view of the facts and circumstances, we accept this prayer and direct that the Registry to list the appeals in the first week of February, 2008. The applications stand disposed of accordingly. (Dictated in the open Court)

  ---

• 2007 (11) TMI 544
  
  Issues involved: Condonation of delay in filing appeal, independence of appellant's appeal from main party's appeal, applicability of previous rulings on delay condonation.
  
  Condonation of Delay:
  The applicant sought condonation of a 214-day delay in filing the appeal, citing a belief that no additional appeal was necessary after the main party filed their appeal. The appellant relied on past rulings where marginal delays were condoned based on satisfactory explanations. However, the Commissioner opposed the delay condonation, arguing that the appellant's appeal was independent of the main party's appeal, and the appellant's awareness of the need for a separate appeal indicated negligence. The Tribunal found the appellant's explanation unsatisfactory, noting their awareness of the appeal requirement but failure to act until after the main party's appeal was disposed of. Consequently, the condonation application was rejected, leading to the dismissal of the stay application and appeal.
  
  Independence of Appeals:
  The Tribunal determined that the appellant's appeal was not a supplementary appeal of the main party's appeal, as the main party's appeal had already been resolved before the appellant filed their appeal. The appellant's failure to challenge the order against them separately, despite being aware of the necessity to do so, indicated negligence and lack of satisfactory explanation for the delay. The Tribunal emphasized the distinct prayers and orders for each party involved, highlighting the appellant's inaction and clear negligence in not filing a timely appeal.
  
  Applicability of Previous Rulings:
  The Tribunal considered past rulings where delay condonation was granted due to marginal delays and satisfactory explanations. However, in this case, the Tribunal found the appellant's reasons for delay unsatisfactory, as they chose not to file an appeal despite being aware of the requirement to do so. The Tribunal emphasized that the appellant's decision to file the appeal only after the main party's appeal was disposed of did not justify the delay. As a result, the Tribunal rejected the condonation of delay application, leading to the dismissal of the stay application and appeal.
  

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• 2007 (11) TMI 543
  

  Demand - Cenvat/Modvat - Demand - Clandestine removal of finished goods

  
  
  ... ...
  ... ... ..... ce and in absence of cogent evidence, it transpires that the Appellant was deprived of due process of justice for leading defence. This goes to the root of the matter. Violation of principle of natural justice is not a curable defect by this forum. Accordingly, there shall be no demand of Rs. 7,06,906/- on the Appellant on the allegation which was the subject matter of Annexure C-1 to the show-cause notice. Thus, the impugned order is not sustainable in respect of this demand. 8. emsp Having arrived at the conclusion that the impugned order is sustainable on the aforesaid two allegations, we were satisfied that the ld. Appellate Authority was right to hold that the proceeding was not time barred. Accordingly, it would be proper to direct the Appellant to suffer penalty of Rs. 4,60,625/- without any hesitation. This should only meet ends of justice. 9. emsp In the result, the appeal is partly allowed. (Operative part of the Order was pronounced in the open Court on 27-11-2007)

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• 2007 (11) TMI 542
  
  Issues involved: Denial of Cenvat credit on capital goods including Welding Electrodes, Shaft, Asbestos Packing/CAF Jointing Sheet, Plates/Shafts/Sections of Iron and Steel.
  
  Welding Electrodes: The Tribunal upheld the denial of credit on Welding Electrodes based on previous rulings stating that manufacturers are not entitled to credit for welding electrodes as inputs or capital goods.
  
  Shaft: The shaft, being a part of the main rollers and classified under Chapter 84 as a component of the machine, is considered eligible for Cenvat credit as capital goods. Denial of credit on shaft is set aside.
  
  Asbestos Packing/CAF Jointing Sheet: Asbestos packing/compressed asbestos fibers used for preventing leakage in pipes are considered integral parts of sugar machinery and entitled to Cenvat credit as capital goods. Denial of credit on these items is set aside.
  
  Plates/Sheets/Sections/Shafts-Iron: These items, used for making shades in the factory, are considered construction/fabrication material and not falling within the definition of components, accessories, or spares of capital goods. The denial of credit on these items is upheld based on their use for making structures rather than for repair and maintenance of machinery.
  
  In conclusion, the credit on Asbestos and Shaft is allowed, while the denial of credit on Welding Electrodes and S.S. plates is upheld. The issue revolves around the admissibility of Cenvat credit on various goods and the interpretation of statutes, leading to the setting aside of the penalty imposition.

  ---

• 2007 (11) TMI 541
  
  Issues Involved:
  The denial of abatement claim due to failure to intimate closing stock balance during factory closure.
  
  Summary:
  The case involved the denial of abatement claim due to the appellant's alleged failure to inform the closing stock balance during the factory closure period. The appellant, a Hot Re-rolling Steel Mills, claimed abatement in duty liability as per Section 3A(3) of the Central Excise Act, subject to compliance with Rule 96ZP(2) of the Central Excise Rules. The rule required the manufacturer to inform the authorities about factory closure, electricity meter readings, and stock balances upon closure and restart.
  
  The appellant filed abatement claims for specific periods, having followed the prescribed requirements for an earlier period. They communicated factory closure and stock details to the department. However, the Commissioner rejected subsequent abatement claims for not declaring stock balances during closure periods.
  
  For the period 1-4-1999 to 1-5-1999, the appellant argued that continuous closure from 23-1-1999 to 1-5-1999 was intimated to the department, and stock remained unchanged upon restart on 2-5-1999. The Tribunal found continuous closure sufficient to waive the specific stock declaration on 1-5-1999, allowing the abatement claim for this period.
  
  Regarding the period 8-5-1999 to 19-5-1999, the appellant failed to declare stock on 8-5-1999, leading to the rejection of the abatement claim for this period. The Tribunal upheld the Commissioner's decision for this specific period.
  
  Citing relevant case law, the Tribunal emphasized the importance of declaring physical stock during closure periods. While delays in stock disclosure were noted in previous cases, timely intimation was crucial. Continuous closure justified waiving specific stock declarations. Consequently, the Tribunal set aside the Commissioner's decision for the period 1-4-1999 to 1-5-1999 but upheld it for the period 8-5-1999 to 19-5-1999.
  
  In conclusion, the appeal was disposed of based on the above considerations.

  ---

• 2007 (11) TMI 540
  

  Penalty - Production capacity based duty

  
  
  ... ...
  ... ... ..... y from the 11th day of such month. Regarding the payment of penalty, it appears that he shall be liable to pay penalty on the amount of duty outstanding from him at the end of such month. Thus, the liability to pay of penalty is on the amount of duty outstanding from the manufacturer at the end of such month. In the present case, it is seen there is no outstanding of duty from the appellant at the end of such month, as the appellant discharged the duty liability on 12th of such month instead of 10th. So, the imposition of the penalty under clause 2 on provision to Rule 96ZP(3) of the said rules is not sustainable. Further, the appellant discharged the duty liability on 12th instead of 10th with interest and therefore the findings of the Commissioner (Appeals) that the delay is to be deliberate with the intention to evade duty is totally unjustified. Hence, the impugned order is set aside. The appeal is allowed with consequential relief. (Dictated and pronounced in open court)

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• 2007 (11) TMI 539
  

  Business expenditure - Assessee was a private limited company promoted by a family - It appointed ‘D’, i.e., one of members of family, as a director and claimed deduction under section 37(1) in respect of director’s training expenses - Whether, on facts, there was no nexus between expenditure incurred and purpose of business, and, therefore, assessee’s claim was rightly rejected by authorities.

  ---

• 2007 (11) TMI 538
  

  Valuation - Related persons - Held that: - From the records, it appears that only the clearances to interconnected undertakings have been taken into account for the purpose of quantifying the demanded amount. We also find that the appellants have made various legal submissions in their replies to show cause notice, which have not been taken into account by the Adjudicating Commissioner. As such, we waive the requirement of pre-deposit and set aside the impugned Order and with the consent of both sides, remand the appeals to the Adjudicating Commissioner for fresh decision - appeal allowed by way of remand.

  ---

• 2007 (11) TMI 537
  
  Issues involved: Stay petition to dispense with pre-deposit of duty and penalty u/s Rule 57CC for non-availing credit of duty on common inputs.
  
  The Appellate Tribunal CESTAT, AHMEDABAD heard a case where the appellant, engaged in manufacturing Starch and Starch products, sought to dispense with the condition of pre-deposit of duty and penalty imposed u/s Rule 57CC. The Commissioner confirmed the demand but acknowledged that the appellant was not availing credit of duty on common inputs like Hydrochloric Acid and Caustic Soda Lye for dutiable products. However, the Commissioner did not grant the benefit, citing non-compliance with Rule 6 due to lack of separate storage for inputs used in both dutiable and exempted products.
  
  The Tribunal noted that the appellant did not avail credit on inputs for exempted products despite using only 10 to 12% of such inputs. Referring to the Supreme Court's decision in Chandrapur Magnet Wires (P) Ltd., it was established that non-availing of credit on inputs used in final product manufacturing is compliant with Modvat rules, even without separate storage facilities for different types of inputs.
  
  After considering the arguments, the Tribunal found that the appellant had a strong prima facie case in their favor regarding the non-availing of credit on common inputs. Consequently, the Tribunal ordered to allow the stay petition unconditionally.
  
  *(Pronounced in Court)*

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• 2007 (11) TMI 536
  

  Penalty on partner - Imposition of

  
  
  ... ...
  ... ... ..... . Gold Control Administrator cited supra, relied upon by learned SDR relates to Gold (Control) Act, in which there was a presumption when an offence was committed by a company, then every person who at the time of offence was in-charge of the company or was responsible to the company for the conduct of business shall be deemed to be guilty in terms of Section 93 of Gold (Control) Act. 7. emsp The above decision may not be relevant to the facts of the present case. I do not find any valid reasons to interfere with the decision of the Commissioner (Appeals) in setting aside the penalty on the partner. 8. emsp The above decision is arrived at based on the evidence and the role of the partner as recorded in the impugned order and merits of the case against the appellant-firm has not been gone into as the appeal before the firm is not before me. 9. emsp The appeal by the department seeking restoration of the penalty on the respondent is rejected. (Dictated and pronounced in Court)

  ---

• 2007 (11) TMI 535
  
  Issues involved: Consideration of a rectification of mistake application based on a Supreme Court decision rendered after the Tribunal's judgment.
  
  Summary:
  
  The appeal was initially dismissed by order No. C-II/1195/WZB/2001, dt. 27-4-01 [2001 (135) E.L.T. 778 (T)]. Subsequently, the appellant filed a rectification of mistake (ROM) application on 28-6-01, citing the Hon'ble Supreme Court's decision in the case of Nizam Sugar Factory Ltd. v. Collector of Central Excise - 2001 (129) E.L.T. 291 (S.C.). The ROM application was considered by the Bench, and it was noted that the question of whether a Supreme Court judgment issued after a Tribunal's decision could be the basis for rectification was referred to the Larger Bench. The application was to be heard post the Larger Bench judgment [2002 (53) RLT 604].
  
  The Larger Bench of the Tribunal, in the case of Hindustan Lever Ltd. v. CCE Mumbai-I - 2006 (202) E.L.T. 177 (Tri-LB) = 2008 (10) S.T.R. 91 (Tri.-LB), determined that a Supreme Court decision, even if post the Tribunal's decision, is binding and can be grounds for reopening concluded proceedings and issuing a fresh order within the legal timeframe.
  
  Consequently, based on the Larger Bench's decision, the ROM application was deemed maintainable and scheduled for a hearing on 3-12-2007. The final pronouncement was made in court on 20-11-2007.

  ---

• 2007 (11) TMI 534
  

  Rectification of mistake - Error apparent on face of record

  
  
  ... ...
  ... ... ..... nd is incorrect. I reproduce the relevant portion from the order-in-original ldquo I also observe that at serial No. 19, in the column of inputs, lsquo cheese winder stand rsquo has been shown as inputs falling under Chapter sub-heading No. 8477.00 of the Central Excise Tariff Act, 1985. So, the allegation of not filling the declaration prior to the receipt of the goods, i.e. inputs is not established. rdquo 2.2 emsp Further, if cheese winder with stand was the material received as claimed by the department, then both the products the input received and the final product admittedly fall under the same tariff heading. In such a situation, I do not find any justification for demand of duty on the final product which is also claimed to be cheese winder machine. It is relevant to note that there is no special definition for this chapter heading expanding the scope of the term manufacture. 3. emsp The application is accordingly rejected. (Dictated and pronounced in the open Court)

  ---

• 2007 (11) TMI 533
  

  Demand and penalty - Natural justice - Show cause notice

  
  
  ... ...
  ... ... ..... llegation which was subject matter of the impugned order. The impugned order levied duty of Rs. 86,052/- and the manner how such was worked out, was not reflected in the show-cause notice. This clearly establishes that the Appellant was deprived of due process of justice and due process of law without demonstration of consideration of plea of Appellant on reconciliation and levy of duty of Rs. 86,052/-. The Appellant having been denied reconciliation of stock position and there being no whisper also why such reconciliation was not done, the Appellant should not be dealt prejudicially. Both the authorities having travelled beyond the scope of show-cause notice and denied justice to the Appellant, non-reasoned Appellate Order as well as non-speaking one is unsustainable. 3.2 emsp Consequently, Appeal is allowed setting aside the impugned order. 3.3 emsp The Appellant is entitled to consequential relief, if any, in accordance with law. (Dictated and pronounced in the open Court)

  ---

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