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Showing 501 to 520 of 735 Records

• 2009 (11) TMI 461
  

  Penalty- Concealment of income - This appeal by the Revenue is filed being aggrieved by the order of the Income-tax Appellate Tribunal, for the assessment year 2000-01 dated September 6, 2006, wherein the appeal filed by the Revenue has been dismissed confirming the order passed by the Commissioner of Income-tax (Appeals) dated December 16, 2004, wherein the order imposing penalty under section 271(1)(c) of the Act has been cancelled by the appellate authority by allowing the appeal. Held that- the Tribunal had confirmed the finding of fact arrived at by the appellate authority and there was concurrent finding by the Tribunal that the appellate authority accepting the cause shown by the assessee under section 271(1)(c) for deleting the order of penalty imposed under section 271(1)(c). the order of cancellation was valid.

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• 2009 (11) TMI 459
  

  Refund - M/s. IVRCL” for laying pipes for effluent conveyance system and water transmission. it was certified that ‘M/s. IVRCL’ were eligible for exemption from the Central Excise Duty in accordance with the Notification No. 3/2004-C.E., dated 8-1-2004 or pipes delivered from the factory, M/s. Lanco Industries Ltd. Basing on the above said two certificates. Certificate subsequently cancelled but second set of certificate. Held that- refund claimed as duty paid during interim period to complete project in time. Certificate not placed before adjudicating authority or Commissioner (Appeals). Matter remanded to adjudicating authority for passing fresh order.

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• 2009 (11) TMI 458
  

  Advance licence – The appellant contended that the original authority had refused to grant licence only on the ground of violation of clause (b) of sub rule (1) of Rule 7 and since that was found to be unsustainable by the appellate authority, the matter should have ended there and a direction ought to have been given to the original authority to grant the licence. Held that – the contention of the appellant was not accepted. As appellate authority had observed that violation of Rule 7(1)(a) also made by assessee. No reason to interfere in order of Single Judge in remanding the matter.

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• 2009 (11) TMI 457
  

  Stay - Commissioner demanded Service tax of Rs. 55,367/- found to be due from the appellants towards GTA services availed by it during the period September, 2005 to February, 2006 and imposed penalty on the appellant under Sections 76 & 78 of the Act. Abatement under Notification No. 32/2004-ST denied in original order while impugned order demanding tax on the other ground. Held that- demand not in accordance with proposals in SCN and prima facie not sustainable.

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• 2009 (11) TMI 456
  

  Refund- Unjust enrichment – Business Auxiliary Services - Poornima simply books the space in the news paper or books the time in the media and thereafter collects the amount paid to the media or newspaper. The master circular issued by the board has clarified that merely canvassing advertisement for public on commission basis is not classifiable under the taxable service as advertising agency service. Held that – C.B.C.&E. circular covers case of appellant.

  held that – issue of credit note sufficient for deciding liability or claim of refund. No findings of authorities that respondent not refunded amount. Unjust enrichment not applicable.

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• 2009 (11) TMI 455
  

  Stay – Cenvat Credit – Cedit availed in relation to service utilized in respect of exempted as well non-exempted product. Separate account not maintainable. Demand of amount of 8% assailed submitting that credit in relation to exempted product reversed subsequently. Held that – prima facie demand of 8% amount not avoidable. Prima facie no case for total waiver. Pre deposit directed in installment.

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• 2009 (11) TMI 454
  

  Stay – Limitation – Renting of space for affixing/making pole advertisement. Activity for which demand confirmed not possible to be made out from original order. Copy of SCN also not available. Revenue not substantiated claim that order in original served to appellants in accordance with law. Held that – absence of evidence of affixing order in original on doors of assessee or notice board of authority concerned. Thus prima facie case made out for waiver of pre-deposit.

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• 2009 (11) TMI 453
  

  Condonation of delay- Limitation - This application for condonation of delay is filed by the applicants for condonation of delay of 48 days in filing the appeals. Held that- records indicating proprietor suffering from serious back ache and was under treatment from qualified medical physician. Medical certificate produced. Thus delay condoned.

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• 2009 (11) TMI 452
  

  Remand - an appeal filed by the Revenue against order-in-appeal passed the Commissioner (Appeals) by which the Commissioner (Appeals) set aside the order-in-original dated 20-12-07 passed by the Asstt. Commissioner and remanded the matter for de novo adjudication with certain directions. Held that – sections 35, 35A and 35B not made applicable to Service Tax vide section 83. Sub section (4) of Section 85 corresponds to Excise section 35A(3) language of two provisions different. Section 85(5) is only about procedural aspects and not to be interpreted to restrict powers of Commissioner (Appeals) under section 85(4). No infirmity in impugned order remanding matter.

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• 2009 (11) TMI 451
  

  Stay – Architect Service – Submission that only registered architect liable to Service Tax if he provides taxable service and service tax not taxable in absence of registration. Held that- plea raised legal plea. Prima facie case for stay of demand during pendency of appeal.

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• 2009 (11) TMI 449
  

  Penalty- There is no dispute that the respondents had wrongly claimed the exemption available to software as there was no software separately imported and cleared. Adjudicating allegations of mis-declared with intent to evade payment of duty, the original authority demanded differential duty of Rs. 60,994/-, imposed equal amount of penalty under Section 114A of the Customs Act, 1962 (the Act) and ordered fine of Rs. 1,35,000/-. Vide the impugned order, the Commissioner (Appeals) reduced the fine to Rs. 75,000/- and penalty to Rs. 30,000/-. Held that- even considering the value of the entire goods imported, the fine of Rs. 75,000/- imposed by the Commissioner (Appeals) is reasonable. The authorities have not shown that the offending goods would have fetched a profit of Rs. 1,35,000/- were the goods sold in the market. The appeal of the Revenue as regards the fine is therefore dismissed.

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• 2009 (11) TMI 447
  

  Fabrics- Notification No. 14/2002-C.E., dated 1-3-2002- the appellants challenge the orders passed by the lower authorities, original and appellate, denying the benefit of the Notification No. 14/2002-C.E., dated 1-3-2002 allegedly on misconstruction of the conditions attached to the said notification, including the Explanation No. II thereto. Held that- it create legal fiction/deeming provision/presumption of existence of documentary proof of payment of duty but does not relate to payment of duty itself. It cannot be interpreted to mean that even where product is subjected to nil rate of duty, payment of duty is to be presumed. Though it absolves assessee from their primary obligation of proof of payment of duty, legal fiction created by it is exclusively for the purpose of conditions to the Notifications which speak of actual payment. Therefore, existence of facts which could be presumed to give full effect to deeming provision would be relation to actual payment. Therefore, existence of facts which could be presumed to give full effect to deeming provision would be in relation to actual payment of duty as contemplated under conditions, and not of those facts which are neither incidental nor inevitable to payment of duty. it does not enlarge scope of the conditions and cannot be extended beyond its own scope to fact of actual payment itself as it will amount to virtually its rewriting. To presume payment of duty even in a case of no such payment having been made, would amount to creation of another fiction which is not contemplated under the said explanation. If department is able to show that assessee has not paid any duty on products specified in the conditions, then claim for benefit under the notification could be denied. Explanatory note to 2002 Budget did not merely refer to entitlement to benefit of Notification, without producing documentary evidence of payment of duty but also referred to compliance of condition of payment of duty, hence could be of no help to assessee.

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• 2009 (11) TMI 445
  
  The Allahabad High Court dismissed an appeal under Section 35-G of the Central Excise Act, 1944 regarding the liability to pay penalty under Rule 173Q of Central Excise Rules, 1944 for welding electrodes. The Tribunal deleted the penalty as the issue of modvat credit availability for welding electrodes was debatable and unresolved. The penalty amount was Rs. 54,000, and no substantial question of law was found, leading to the appeal being dismissed summarily.

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• 2009 (11) TMI 444
  

  Rectification of mistake- This application filed by the assessee (appellant) seeks rectification of what they consider to be a glaring mistake in Final Order. The main challenge in the said appeals was against a demand of differential duty for the period 1999-2000 to 2003-04 total ling to Rs. 1,28,55,322.70. In the impugned order, the ld. Commissioner had demanded duty of Rs. 34,62,462.86 from the assessee for the period 1999-2000 and duty of Rs. 90,89,490.56 for the rest of the period. The demand of duty for the first period (1999-2000) of dispute was set aside by this Tribunal in the above final order, on the ground that the assessee had correctly determined the assess able value of the goods on the basis of the price charged in their sales to independent unrelated buyers for the said period. As regards the second part (2001 to 2003-04) of the period of dispute, the demand of duty with interest thereon was sustained by the Tribunal, after accepting the assessable value determined by the Asstt. Director (Cost) of the Department. In the present application, two mistakes are pointed out. Held that- legal position not taken into account by Tribunal in impugned order. Mistake glaring and need rectification.

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• 2009 (11) TMI 443
  

  Interest- Penalty- The issue related to delay in reversal of cenvat credit on input short received. The Appellant has challenged the Order of the Commissioner (Appeals) imposing penalty under Section 11AC and demanding of interest under Section 11AB, which were dropped by the Original Adjudicating Authority. Held that- in the light of the decision of Commissioner of Central Excise, Pune v. SKF Ltd. 2009 (93) RLT 237 (SC), wherein the Apex Court has held that interest payable on delayed payment for whatsoever is reason. Thus, confirm the demand of interest on delayed payment. In absence of mens rea, penalty under section 11AC of Act not imposable.

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• 2009 (11) TMI 442
  

  Valuation- Advertisement Expenses- . The issue involved in this case relates to the question of adding the reimbursed amount received from the brand owners [M/s. Konica] towards advertisement expenses incurred by the respondents, to the assessable value of film rolls manufactured and sold by the respondents. Held that- cost of advertisement not a burden on assessee manufacturer and same does not form past of cost of impugned goods. Price at which assessee manufacturer and same does not form part of cost of independent buyer can be taken as the assessable value as they would recover their cost and profit from such independent buyers.

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• 2009 (11) TMI 441
  

  Cenvat Credit - Capital goods - Component, spares and accessories of goods specified in preceding clauses of Rule 2 of Cenvat Credit Rule 2004. Held that- assessee not cared to specify capital goods of which impugned goods claimed to be components, spares or accessories.

  On verification of records, it appeared to the department that this credit had been wrongly taken. The department repeatedly asked the party to reverse it. Ultimately the assessee reversed the entire credit. Subsequently, a show-cause notice was issued for recovery of interest and for imposition of penalty. Held that- there is no allegation of fraud, wilful suppression, collusion or misstatement. Though there is mention of ‘intention to evade duty’ by the noticee, there is no specific allegation as to whether they contravened any specific provision of law with such intention. In this scenario, applicability of sub-rule (2) of Rule 15 is ruled out. Only sub-rule (1) can be applied to the facts of this case. in this situation, the penalty cannot exceed the amount of duty or Rs. 2000/- whichever is greater impliedly a lesser penalty can also be imposed. The provision, in other words, confers discretion on quasi-judicial authority. It was this discretion, which in the facts of the case was correctly exercised by the Commissioner (Appeals). The Revenue’s appeal also gets dismissed.

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• 2009 (11) TMI 440
  

  Exemption- Cenvat Credit- the Appellant had availed of the exemption under Notification No. 6/2000-C.E. (S. Nos. 133 and 134), (the appellant stopped claiming the exemption under this notification w.e.f 10-6-2000), the Department was of the view that they are not eligible for the same, a SCN was issued for denying the exemption and demand of allegedly short paid duty amounting to Rs. 5,72,527/- and also for imposition of penalty under Rule 173Q(1). The Joint Commissioner confirmed the duty demand and also imposed penalty of Rs. 25000/- under Rule 173Q(1) on the ground that the exemption had been wrongly availed as duty credit under Rule 57Q had been availed in respect of dyeing machinery. On appeal, the Commissioner (Appeals) upheld the duty demand, but set aside the penalty. It is against this order of CCE (Appeals) that the present appeal has been filed. Held that- , the appellant was not eligible for concessional rate of duty in respect of dyed yarn under Notification No. 6/2000-C.E. (Sl. Nos. 133 and 134) and do not find any infirmity in the impugned order.

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• 2009 (11) TMI 438
  

  Royalty from foreign enterprises- The appellant is a reputed professor engaged in coaching students mainly for medical and engineering entrance examinations. Along with training students locally in the State, he has developed educational material in the form of CDs and in book form which are exported to students abroad. The appellant claimed the benefit of deduction under section 80-O of the Act. However, the Income-tax Officer disallowed the claim for the reason that the deduction under section 80-O of the Act is admissible only in respect of income received from foreign enterprises in consideration of use outside India of any patent, invention, design, registered trade mark and the consideration here is not for any such use. Commissioner(Appeals) and Tribunal disallowed the assessee claim. Held that- the item covered under section 80-O of the Act are generally items falling under the group of “intellectual property rights”. The assessee had not made any new invention. Thus there is no interference with the order of Tribunal and Commissioner (Appeals).

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• 2009 (11) TMI 436
  

  Demurrage charges- The petitioner submitted that the goods imported through bill of entry No. 294360 dated 27-9-2000 were allowed clearance by M/s. C.C.T.L, Chennai after full waiver of demurrage charges based on the detention certificate issued by the second respondent. However in respect of other bill of entry, the first respondent refused to waive the demurrage charges and sent a letter dated 2-12- 2003 to the petitioner and demanded a sum of Rs. 2,03,201/- being the demur- rage charges. The said order passed by the first respondent is impugned in this writ petition before this court. Held that- submission of custom that port trust to waive demurrage charges. Number of decisions of Supreme Court and High Court that Custom alone is liable to pay demurrage charges for goods detained in port trust premises as instance of customs. Customs directed to pay said charges and goods be released.

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