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Showing 241 to 260 of 654 Records
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2007 (11) TMI 469
Cenvat/Modvat - Inputs ... ... ... ... ..... nvat credit is permissible. The Tribunal decision in the case of Jindal Polymers v. CCE, 2001 (135) E.L.T. 657 wherein it is held that Modvat credit would be available on inputs used for job work by the assessee when the goods manufactured on job work are cleared without payment of duty to the parent manufacturer, is also squarely applicable to the facts of the present case. Therefore, the Cenvat credit is admissible and there is no merit in the stand of the department. There is therefore no reason to interfere with the impugned order of the adjudicating authority rdquo . 6. emsp On careful perusal of the above re-produced portion of the finding of the Commissioner (Appeals), it is seen that both the lower authorities have correctly applied the law as settled by the Tribunal on the very same issue. As such, the findings of both the lower authorities are correct and does not require any interference. Accordingly, the appeal filed by the revenue is rejected. (Dictated in Court)
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2007 (11) TMI 468
Issues involved: Service tax demand on overriding commission for service rendered to a foreign company, applicability of earlier decisions, benefit of stay order, pre-deposit requirement.
Service Tax Demand on Overriding Commission: The Commissioner demanded service tax and education cess from the appellants for services provided to M/s. Saudi Arabian Airlines as 'business auxiliary service'. The tax demand was based on the overriding commission received in Indian currency from the foreign company. The appellants argued for a similar treatment as in a case involving Malaysian Airlines and a reinsurance broker, where waiver of predeposit was granted due to the export nature of services provided.
Applicability of Earlier Decisions: The Bench noted that a previous decision regarding service tax on overriding commission was under appeal and stayed by the High Court. The appellants sought to benefit from a stay order granted in a different case involving a reinsurance broker. However, the Bench found that the appellants had not made a prima facie case against the service tax demand for the months of May and June 2006. No plea of financial hardships was raised by the appellants.
Benefit of Stay Order and Pre-Deposit Requirement: Considering the circumstances, the Bench directed the appellants to pre-deposit a sum of Rs. 5,00,000 within four weeks and report compliance by a specified date.
This judgment addressed the service tax demand on overriding commission for services provided to a foreign company, the relevance of earlier decisions, the benefit of stay orders, and the pre-deposit requirement for the appellants.
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2007 (11) TMI 467
Issues involved: The eligibility of the appellant to avail Cenvat credit on TR-6 challan u/s 16-6-2005 for Goods Transport Agency services.
Summary:
Issue 1: Eligibility of Cenvat credit on TR-6 challan: The appellant sought Cenvat credit on TR-6 challan for services from Goods Transport Agency. The denial was based on TR-6 not being duty paying documents until 16-6-2005. The Tribunal granted waiver due to a similar case precedent. The appellant availed Cenvat credit for service tax paid, similar to a previous case. The Commissioner held TR-6 as proper for credit, supported by Tribunal precedent. The Revenue reiterated their objection, but the appellate authority upheld TR-6 as the basis for credit. The Revenue did not specify an alternative document for credit during the relevant time. The issue was found in favor of the appellants, setting aside the impugned order and allowing the appeal.
Conclusion: The impugned order was set aside, and the appeal was allowed with any consequential relief.
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2007 (11) TMI 466
Issues involved: The issues involved in the judgment are related to the eligibility of the appellants for Small Scale Industry (SSI) exemption under Notification No. 175/86-C.E. and Notification No. 1/93-C.E. for the period 1989-92 and March 1993 to December 1994. The main contention was whether the appellants were entitled to the exemption considering the use of the brand name 'Goldhofer' on their product labels.
Details of the Judgment:
Issue 1: Eligibility for SSI exemption under Notification No. 175/86-C.E. and Notification No. 1/93-C.E. The appellants, engaged in manufacturing trailers and transport equipment, had entered into a collaboration agreement with a German company. The dispute arose due to the use of the brand name 'Goldhofer' on their product labels, which the department argued made them ineligible for SSI benefit under the notifications. Show-cause notices were issued for duty recovery, and penalties were imposed by the Collector of Central Excise. The appellate Commissioner affirmed the orders based on previous decisions. The Collector held that the appellants were not entitled to the exemption as the brand name 'Goldhofer' belonged to the foreign company. However, the Tribunal disagreed, stating that the use of 'Goldhofer' did not necessarily indicate a connection with the German company. The Tribunal referred to previous cases where similar inscriptions did not amount to using the brand name of the foreign collaborator. Therefore, the Tribunal held that the appellants were eligible for the SSI exemption under the notifications for the disputed periods.
Issue 2: Interpretation of brand name/trade name and collaboration agreement The Tribunal analyzed the collaboration agreement between the appellants and the German company, which required affixing a label stating the products were manufactured under license from the foreign company. The Tribunal noted that the intention was to indicate collaboration and not necessarily a brand association. The Tribunal also referred to case law where inscriptions indicating technical collaboration did not constitute the use of a brand name. By examining the definitions of brand name/trade name under the notifications, the Tribunal concluded that the appellants' use of 'Goldhofer' did not disqualify them from the SSI exemption.
Conclusion: The Tribunal allowed the appeals on merits, setting aside the impugned orders and holding that the appellants were eligible for the exemption under Notifications 175/86-CE and 1/93-CE for the disputed periods. The time-bar issue was not addressed as the appeals were allowed based on the eligibility for SSI exemption.
*(Operative part of the order was pronounced in open Court on 7-11-2007)*
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2007 (11) TMI 465
Demand - Destruction in quality control test, excisability ... ... ... ... ..... laboratory for quality test was based upon the non-maintenance of proper accounts of cigarette destruction. 4. emsp The decision of the Hon rsquo ble Madras High Court in CCE, Madras v. Union Carbide India Ltd., 2001 (129) E.L.T. 40 (Mad) relied upon by the learned SDR does not advance the case of the revenue for the reason that ITC judgment of the Apex Court was delivered subsequent to the High Court decision, and further for the reason that the issue before the High Court was the admissibility of Modvat credit on dry cell batteries exempt from duty under Notification 100/69-C.E. as amended which is distinct and different issue from the one involved in the present appeal. 5. emsp In the present case, admittedly, the respondents have maintained accounts of all the destruction of the batteries during the process of quality control testing as seen from the impugned order. 6. emsp In the light of the above, I uphold the impugned order and reject the appeal. (Pronounced in Court)
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2007 (11) TMI 464
Issues involved: Appeal against Order-in-Appeal regarding reversal of Cenvat credit on inputs used for manufacturing exempted and dutiable goods.
Summary: 1. The Revenue appealed against Order-in-Appeal No. Pll/BKS/300/06, contending that the Commissioner (Appeals) erred in allowing the respondent's appeal regarding the reversal of Cenvat credit on inputs used for manufacturing goods. 2. The Revenue argued that as per Rule 6(3), the appellant must pay 10% of the amount if no separate accounts are maintained for inputs used in exempted goods. The respondent cited precedents to support their case. 3. After considering submissions, it was found that the respondent used inputs for both exempted and dutiable goods without separate accounts. The Commissioner (Appeals) relied on previous judgments and ruled in favor of the respondent, stating that the demand, interest, and penalty were not sustainable. 4. Since the appellant had reversed the Cenvat credit on inputs for exempted products, the Tribunal found in favor of the respondent based on a previous decision in the case of Rashtriya Ispat Nigam Limited. 5. The impugned order was upheld, and the Revenue's appeal was rejected as it did not have any infirmity.
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2007 (11) TMI 463
-Stay/Dispensation of pre-deposit ... ... ... ... ..... credit on the service tax paid on the insurance of personal accident, cleaning and maintenance of garden, canteen building, and repairing of street light. I find that the finding of the Commissioner (Appeals) is, prima facie, sustainable. The applicant failed to make out a, prima facie, case for waiver of entire amount of tax and penalty. Accordingly, the applicant is directed to pre-deposit the entire amount of tax within six weeks. After deposit of the said amount, the pre-deposit of penalty is waived till the disposal of the appeal. Compliance to be reported on 24th December, 2007. Order dictated and pronounced in open court on 2-11-2007.
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2007 (11) TMI 462
Rectification of mistake - Error apparent on record - Penalty, personal penalty ... ... ... ... ..... ts that an obvious error has raised in upholding the penalty under Rule 209A according to which a person who is any way concerned the goods, which he knows or has reason to believe are liable to confiscation, is liable to penalty. In order to sustain a penalty under this rule goods must be held liable to confiscation. In absence of any finding that any goods are liable to confiscation, there is an obvious error in upholding penalty on the appellants under the provision of Rule 209A. I, therefore, allow the applications by setting aside the penalties of Rs. 10,000/- and Rs. 25,000/- imposed on Smt. Vaishali Khanapurkar and Shri Mahesh C. Kadakia respectively under Rule 209A. (Dictated in Court)
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2007 (11) TMI 461
Suspension of Customs House Agents licence - Immediate suspension - Held that: - immediate suspension of CHA licence could be ordered only in cases where such action is necessary and where an enquiry against the CHA is pending or contemplated - Apart from the fact that two statements were recorded from the CHA, there is nothing in the impugned order to indicate that enough materials were gathered by the department to support immediate suspension of the operation of the licence - appeal allowed - decided in favor of appellant.
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2007 (11) TMI 460
Stay/Dispensation of pre-deposit - Exemption - Advance rulings ... ... ... ... ..... sel and learned SDR, we have not found prima facie case for the appellants. They have not pleaded financial hardships in the present application either. 3. emsp Learned counsel has also pointed out that, in a similar case of the same assessee, the West Zonal Bench (Mumbai) granted waiver and stay after noting that a deposit of Rs. 11.00 lacs made by them at the time of provisional clearance of the goods had already been appropriated by the department. Learned counsel has urged us to follow suit. However, admittedly, there is no other amount of deposit by the assessee, available for a similar appropriation. 4. emsp Nevertheless, we take a lenient approach in this case, for the present purpose, inasmuch as learned counsel has initiated a discussion on an arguable issue. In the result, the appellants are directed to predeposit an amount of Rs. 10,00,000/- (Rupees Ten lacs only) within four weeks and report compliance on 13th December 2007. (Dictated and pronounced in open Court)
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2007 (11) TMI 459
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... uo mistake rsquo pointed out by the party in the present application is to the effect that the Tribunal rsquo s Larger Bench decision in Gauri Plasticulture (P) Ltd. v. Commissioner of Central Excise, Indore 2006 (202) E.L.T. 199 (Tri. - LB) 2006-TIOL-1121-CESTAT-MUM-LB was wrongly applied to the case. It is said that there were High Court decisions to the contra and, therefore, such decisions should have been followed. Again, no decision of any High Court has been mentioned in the present application. As rightly noted in the final order, learned Consultant had cited a plethora of decisions of the Tribunal in support of the refund claim in question. However, the Larger Bench decision in Gauri Plasticulture (supra) cited by SDR was against them. In the circumstances, the appeal of the Revenue came to be allowed in view of the Larger Bench decision. 4. emsp Having found no mistake whatsoever in the final order, I dismiss this application. (Dictated and pronounced in open Court)
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2007 (11) TMI 458
Stay/Dispensation of pre-deposit - Admissibility of Evidence - Computer print-outs - Held that: - The appellants had raised a legal issue to hold that the condition in Section 36B has not been fulfilled in respect of the retrieved computer printout and therefore, the same would not be admissible in evidence. Prima-facie, this contention of the appellant appears to be correct. Moreover, there is force in the contention of the appellants that the demands have been multiplied. No evidence has been produced for the receipt of huge quantity of raw materials required for production and clearance of Gutka/Panmasala involving duty of ₹ 137 crores. No investigation regarding finances required for such huge turnover has been done. There is no evidence of any seizure of cash. The production capacity is also a contentious issue. All these issues have to be examined only at the time of regular hearing. Presently, no definite finding regarding alleged evasion can be given - the recovery of the balance of duty and penalty is stayed till the disposal of the appeals.
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2007 (11) TMI 457
... ... ... ... ..... s manufactured by the respondents. 3. emsp We find that in the impugned order there is a specific finding that the sale price of goods is the same for the customers who had made security deposit and those who had not made such deposit. In view of this factual finding and as the Revenue failed to show that the security deposit has influenced the price charged by the appellant, therefore the appeal is dismissed. (Pronounced in open Court)
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2007 (11) TMI 456
Unexplained investments ... ... ... ... ..... he source of investment in the jeep, therefore, the order of the lower authorities deserve to be set aside. The learned Departmental Representative relied on the order of the authorities below. 4. After hearing the rival submissions and perusing the relevant material on record, we find that the assessee was in Government service for 39 years. After retirement, he is staying in the village. Retirement benefits were received by the assessee in cash, which is not in dispute. He was also receiving pension since 1996, which is also not in dispute. The assessee has purchased the jeep for Rs. 4,85,000. The revenue has not found any investments elsewhere except the purchase of jeep. In such a situation, we are of the view that he was having sufficient funds to purchase the jeep from the savings from salary as well as from pension and the amount received on the retirement. We, therefore, set aside the order of the lower authorities on the issue. 5. In the result the appeal is allowed.
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2007 (11) TMI 455
Addition made in the income by the Depreciation amount on wind farm plant - Disallowance of expenses on foreign travel - vehicle expenses.
Depreciation on wind farm plant - Absence of details regarding installation and commercial operation of the wind mill generators - HELD THAT:- We find that the WTGS was commissioned and trial run was also undertaken which is evident from the certificate of Gujarat Energy Development Agency for the share of power certifying that 11.9 KW were supplied to the Gujarat Electricity Board in the month of March, 1995. Sales-tax exemption certificate with effective date as 27-3-1995, the eligibility certificate issued by the Commr., commissioning certificate by GEDA, quick test report issued by the GEDA letter of NEPC-MICON for successful commissioning and all certifying that the WTGS was commissioned on 27-3-1995. Thus, there remains no doubt that the WTGS was commissioned only on 27-3-1995 and, therefore, the assessee is entitled to depreciation in respect thereof in accordance with law. The AO is directed to allow the claim of the assessee.
Disallowance of expenses on foreign travel - HELD THAT:- In our opinion, if the expenditure is incurred for exploring the possibility of exports and attending exhibition in France, the expenditure would be for the purpose of assessee’s business and the entire expenditure is to be allowed irrespective of whether the assessee was able to get export orders or make any export in this year or in the subsequent year. Therefore, the CIT(A) was not justified in restricting 50 per cent of the expenditure incurred for travelling. We direct travelling expenses incurred by the assessee in full.
Disallowance of vehicle expenses - HELD THAT:- We find that the issue stands covered by the decision of the Gujarat High Court in the case of Sayaji Iron & Engg. Co.[2001 (7) TMI 70 - GUJARAT HIGH COURT], referred to by the CIT(A) and, therefore, the CIT(A) was right in allowing the claim of the assessee.
In the result, assessee’s appeal stands partly allowed and Revenue’s appeal stands dismissed.
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2007 (11) TMI 454
Deductions - Exporters, Income escaping assessment ... ... ... ... ..... ot relate to making of general enquiry. The issues covered are definite, specific and represent the escaped income of the assessee. As regards the merits of disallowance of deduction in respect of these items of Income, the issue is squarely covered In favour of the Revenue and against the assessee by the judgment of Hon rsquo ble Punjab and Haryana High Court in the case of Liberty India ( supra). 16. Thus, having regard to these facts and circumstances of the case and the legal position discussed above, we are of the considered opinion that the Assessing Officer was justified in reducing the deduction under section 80-IB by excluding DEPB receipts and duty drawback from the profits of the business while completing the reassessment. Accordingly, we set aside the order of the CIT(A) and restore that of the Assessing Officer. These grounds of appeal are also allowed. 17. In the result, the appeal of the Revenue is allowed and cross-objection filed by the assessee is dismissed.
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2007 (11) TMI 453
Business expenditure ... ... ... ... ..... tled to deduction under section 37 of the Act even assuming that the assessee was engaged in the business of holding investments. In the present case the Assessing Officer has given a finding of fact that the amounts raised on the issue of debentures were utilised for purchase of debentures issued by the group company and not for the regular business of leasing. It is also not in dispute that income from sale of debentures has been offered by the assessee under the head lsquo capital gains rsquo . Considering the above finding of fact and following the decision of the Tribunal in the case of Kankhal Investments and Trading Co. (P.) Ltd. (supra), it is held that the assessee is not entitled to deduction in respect of payment made on redemption of debentures. The order of the CIT(A) is therefore, reversed and consequently the disallowance made by the Assessing Officer is restored. 17. In the result, appeal of the assessee is dismissed while the appeal of the revenue is allowed.
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2007 (11) TMI 452
Business expenditure, Deductions - Profit and gains from export of computer software, Minimum alternate tax
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2007 (11) TMI 451
Income from other sources ... ... ... ... ..... e to the file of the Assessing Officer, which may be decided after giving a fair hearing to the assessee. 6.2 The result of aforesaid discussion is that ground Nos. 1 to 8 are treated as partly allowed for statistical purposes. 7. Ground No. 9, regarding taxation of interest received on loans given to the employees under the residuary head, was stated to be covered by the order of the Hon rsquo ble ITAT, Delhi Bench I , Delhi in ITA Nos. 3726 and 3727 (Delhi)/2005 for assessment years 1998-99 and 1999-2000 dated 13-7-2007, a copy of which was filed before us. It was accepted by the learned DR that the ground stands covered by paragraph 4 of that order, in which it was held that staff loans were given not for earning interest income, but to grant a benefit to them and, thus, the advances were made in the course of business of the assessee. Respectfully following that order, the appeal is allowed on this ground. 8. In the result, the appeal is partly allowed as indicated above.
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2007 (11) TMI 450
Business income ... ... ... ... ..... iousness of the parties in saying that timely payment of the price was of the essence of the contract. An in-depth examination of the facts, along with recording statements from the persons concerned - both the assessee and Silver Glades may be necessary to bring out the truth from the somewhat intriguing facts. Only when the complete facts are brought on record and their implication analyzed can it be said whether there was a real sale of the property by the assessee to Silver Glades and any income accrued to it as profits of the business. We, therefore, consider it proper and in the interests of justice to set aside the orders of the departmental authorities and restore the case to the file of the Assessing Officer for being redone in accordance with law and in the light of our aforesaid observations. Needless to add that the assessee shall be given due opportunity to put forth its case. We direct accordingly, and allow the appeal of the department for statistical purposes.
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