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Showing 161 to 180 of 925 Records
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2012 (6) TMI 773
Revocation of CHA License - Lending of IEC code for undervaluation done by importers - Held that:- CHA licence has been issued by the Commissioner of Customs, Pune. However, in this case the CHA licence has been revoked by the Commissioner of Customs (General), Mumbai, who has no jurisdiction over the CHA - Commissioner who has issued the CHA licence is only having the jurisdiction to revoke the CHA license. In this case, we find that the CHA licence has been issued to the appellant by the Commissioner of Customs, Pune and their licence has been revoked by the Commissioner of Customs (General), Mumbai, who has no jurisdiction to revoke the CHA licence of the appellant. - Decision in the case of N.C. Singha v. Union of India [2010 (2) TMI 613 - CALCUTTA HIGH COURT] - Decided in favour of appellant.
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2012 (6) TMI 772
Revision u/s 263 - additions on account of write back of stale demand drafts to the Profit & Loss account which was done as per the direction of Reserve Bank of India - Held that:- In the instant case, as mentioned earlier, the Reserve Bank of India had categorically directed that the amounts are to be kept in general reserve account though routed through the profit and loss account. It is the direction of the RBI that the assessee bank is under an obligation to meet the future claims out of General Reserve so created. The RBI had also stipulated that the amounts so transferred shall not be used in the form of distribution of dividend. In this context of the matter, it cannot be said that it is the money of the assessee bank. The RBI instructions are issued as per section 35A of the Banking Regulation Act, 1949 and the same are binding on the assessee bank. Therefore, though it is routed through the profit and loss account, it does not have income character in the hands of the assessee bank and hence, it cannot be brought to tax. Accordingly, the CIT’s order invoking revisionary jurisdiction under section 263 of the Act directing the Assessing Officer to assess an amount of ₹ 52.77 crores is not justified and therefore, is quashed to that extent. It is ordered accordingly. - Decided in favour of assessee.
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2012 (6) TMI 771
Denial of input service credit - outward transportation service - Inclusion of transportation charges into the assessable, value and claimed input service credit of outward transportation service - Held that:- Clearances have been made by the appellant from the depot and as per the Section 4A of the Central Excise Act, 1944, the depot is the place of removal as the clearances have been made by the appellant from their depot and the same is place of removal. Therefore, the appellants are entitled for input service credit on GTA service upto the depot. - With regard to the denial of CENVAT credit of ₹ 10,354/-, I find that as per the Board's Circular No. 97/8/2007 dated 23.08.2007 the appellant is satisfied all the conditions as the sales are upto the place of buyer and the transportation charges have formed a part of the assessable value, the transportation risk has been borne by the appellant. Therefore, the appellant is entitled for input service credit on GTA service upto the place of removal i.e. place of buyer's door. The view is supported by the decision in the case of Palco Metals Ltd. vs. CCE - [2011 (8) TMI 88 - CESTAT, AHMEDABAD]. Therefore, on the whole, the appellants are entitled for input service credit in the facts of the case. - Decided in favour of assessee.
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2012 (6) TMI 770
y for claim of exemption u/s 5(2) of the Central Sales Tax Act - Privity of contract between the Government of India and the foreign party for importation of any goods or not – Whether in the absence of any sale in the course of import, the finding of the Tribunal that the transaction continued to be in pursuance of the earlier contract made by the Government of India, Mint, Noida with the first respondent and, therefore, there existed a privity of contract, is liable to be interfered with or not - Held that:- The assessee has entered into contracts with the foreign seller for conversion of steel strips into coin blanks for valid consideration - under the CST Act, 1956, tax is leviable on the sale of goods and not because of the movement of the goods - The movement of the goods is only material for the purpose of deciding whether the sale took place in the course of inter-State trade or commerce or whether such sale was purely an intra-State transaction - the name given to a transaction by the parties concerned does not decide the nature of the transaction - in order to make a transaction taxable under the CST Act, 1956, the transaction must be a "sale" as defined in section 2(g) - To claim exemption u/s 5(2) of the Act, the sale or purchase of goods should be deemed to take place in the course of the import of the goods into the territory of India - as per the definition, "sale" means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration.
In K. Gopinathan Nair Versus State of Kerala (and other appeals) [1997 (3) TMI 513 - SUPREME COURT OF INDIA] the Supreme Court formulated the following three essential conditions to come to a conclusion whether the sale can be said to be in the course of import to claim exemption under section 5(2) of the CST Act or not – starting with, there must be a sale, goods must actually be imported and sale must occasion the import - the assessee has not established that there was any term or condition prohibiting the diversion of the goods after the import, i.e., the inextricable link between the transaction of the sale and the actual import making sale in the course of import - Moreover, in order to qualify for the exemption, the goods must move from the foreign country to India in pursuance of the conditions in the contract of sale between the foreign seller and the local purchaser, but, the goods were imported from the foreign country to India in pursuance of the contract entered into between the foreign seller and the first respondent, who was not the local purchaser – thus, the sale contemplated u/s 5(2) of the Central Sales Tax Act, 1956 is not applicable – the transaction took place between the parties had amply made it clear that the sale contemplated under section 5(2) had not taken place and, moreover, even assuming that there was an import of goods from Italy, such import was not occasioned as a result of sale by a dealer in Italy - The dealer was prevented from selling the goods to any person other than to whom the import licence had been granted, i.e., to be sold only to the Mint Government of India by the dealer – thus, the order of the Tribunal is set aside – Decided in favour of petitioners.
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2012 (6) TMI 769
Reduction of period of exemption – assessee is a medium scale industrial unit - Held that:- Relying upon K. Premerajan Versus State of Kerala [2007 (12) TMI 424 - KERALA HIGH COURT] - in the matter of industries set up on or after April 1, 1989 and prior to April 1, 1993, the competent authority was conferred jurisdiction as per the notifications on a combined reading of SRO. No. 1729/1993 and SRO. No. 654/1989 - but the jurisdiction extended to grant of exemption only for a period of five years - The grant of exemption for seven years; to the extent of the additional two years, is definitely in excess of the jurisdiction and again cannot be considered as one of irregular assumption of jurisdiction or an error of law committed within the jurisdictional competence - To the extent of the exemption granted beyond the specific period of five years prescribed under the relevant notification, the same was definitely vitiated by lack of jurisdiction or want of jurisdiction - The authority clearly exceeded the jurisdictional mandate of SRO. No. 1729/1993 read with SRO. No. 654/1989 – the AO was perfectly right in confining the exemption to five years, since annexure A to the extent it granted exemption for the additional two years was a nullity – the assessing authority was justified in passing the assessment order under the Central Sales Tax Act rejecting the claim of exemption beyond five years and finding the assessee's claim for concessional rate under the Central Sales Tax Act to be governed under SRO. No. 1731/1993 – Decided against petitioner assessee.
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2012 (6) TMI 768
Loaders and dumpers - whether be treated as plant and machinery of stone crusher? - Held that:- Considering the situation of the law pronounced in Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes [1964 (10) TMI 41 - SUPREME COURT OF INDIA] and having regard to the undisputed facts as narrated above, in so far as the revisionist is concerned, loaders and dumpers should be treated as plant and machinery of stone crusher, as registered in the registration certificate of the revisionist.
The conclusion, therefore, would be that the judgments and orders of the Tribunal, the appellate authority and the assessing authority to the effect that loaders and dumpers are no part of plant and machinery of stone crusher, are not sustainable and, accordingly, they are quashed.
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2012 (6) TMI 767
Order of the assessment creating demand - Recovery proceedings - Held that:- As clearly mentioned in para 27 of the counteraffidavit that the impugned letter which was dispatched to the dealer from the Deputy Commissioner, Commercial Taxes (SIB) on June 16, 2011 was only for information. The letter was not an assessment order. And specifically, it is again mentioned in para 29 of the counter-affidavit that it is up to the will and discretion of the dealer either to deposit, lawfully, the tax and interest suggested in the light of facts mentioned in the letter or to deposit the tax after the assessing officer passes the assessment order and issues the demand letter. In the last para 31 it is further mentioned in the counter-affidavit that the assessing officer has to conduct proceedings only after giving a reasonable opportunity of hearing to the petitioner. Therefore, the impugned letter dated June 16, 2011 sent by the SIB Unit is not binding on the dealer or the concerned assessing officer.
Thus the direction given to the petitioner to deposit the amount is set aside and no recovery shall be made in pursuance of the impugned order. However, it is made clear that the assessing officer may make assessment in accordance with law.
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2012 (6) TMI 766
Issues involved: Interpretation of liability u/s 7(1)(a) for payment of tax at compounded rates.
Summary:
The judgment by the Kerala High Court addressed the review petitions concerning the liability under section 7(1)(a) for payment of tax at compounded rates. The court considered the contention that tax payable under the provision should be with reference to the preceding year's tax liability as reduced by exemptions. The section specifies that the tax payable is 200 per cent of the highest amount among the tax payable by the dealer as conceded in the return, tax payable based on accounts for the immediately preceding year, and the tax paid for the immediately preceding year. The court noted that the liability is the higher amount between the tax payable in the return and the tax payable based on turnover of sales and purchases available in the accounts. The tax paid in the preceding year is to be reckoned for determining the liability under the compounding scheme, but in this case, the tax payable based on accounts was higher than the tax paid in the preceding year. Therefore, the court dismissed the review petitions as devoid of any merit.
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2012 (6) TMI 765
Circular dated May 30, 2009, issued by the Commissioner of Taxes, Uttarakhand directing not to treat sauces like tomato sauce, etc., under entry 6 of Schedule IIB to the Uttarakhand Value Added Tax Act, 2005 challenged - whether the learned single judge, has rightly held that the tomato sauce is a processed vegetable?
Held that:- Merely for the reason, that the word "tomato sauce" is not mentioned in entry 6, it cannot be said that the same is not included, particularly when the word "All" is affixed with the expression "processed and preserved vegetables" in the entry.
In Mauri Yeast India Pvt. Ltd. v. State of U.P. [2008 (4) TMI 101 - SUPREME COURT] the apex court has opined that where two logical opinions are possible in respect of an item whether the same is covered under a specific entry or a residuary entry, the former is to be preferred. As such the trial court has rightly held that tomato sauce being a processed and preserved vegetable is covered under entry 6, and circular letter dated May 30, 2009, being against the spirit of entry 6 of Schedule IIB to the Value Added Tax Act, is liable to be quashed. The impugned order passed by the learned single judge, does not require any interference. Appeal dismissed.
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2012 (6) TMI 764
Order forfeiting the refundable amount - Whether such order amounts to revising the Commissioner's order which is impermissible in law?
Held that:- There is no dispute that while completing the assessment, the second respondent ordered refund on the ground that the TDS under section 5H of the Sales Tax Act was already deducted on ballast and cement and therefore, the tax already paid has to be refunded. This finding remained intact and this stood affirmed by the ADC as well as the Commissioner. Therefore, the principle in Mafatlal Industries Ltd. v. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] has no application. It is not a case of unjust enrichment at all.
A bare perusal of section 30C(1) would support the contention of the petitioner that the power to forfeit the tax provided therein is not attracted in a case of this nature. Further, having already passed reassessment order under section 14(4) on January 17, 2000, the second respondent could not have passed the impugned order ignoring the order of the ADC and the Commissioner which are binding on him. The impugned order, therefore, is ex facie unsustainable and it is accordingly set aside. The second respondent shall refund the amount as per form C dated September 5, 2003 within a period of four weeks from the date of receipt of copy of this order along with interest as per section 33E of the Sales Tax Act. W.P. allowed.
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2012 (6) TMI 763
Constitutional validity of levy of luxury tax on cable TV operators challenged - Held that:- What is to be seen is that though the tax is a charge on the cable TV operators, the incidence of tax falls on the subscribers, i.e., ₹ 5 per month, which is probably two per cent of the monthly collection by the cable TV operators from the customers as average collection ranges from ₹ 200 to ₹ 250 per month. We therefore, do not find any constitutional infirmity in the levy of luxury tax on cable TV operators which they are bound to collect and remit from the subscribers at the rate of ₹ 5 per month, which is in addition to the service tax payable for the service provided by the cable TV operators.
Retrospective amendment of 2010 exonerating cable TV operators with less than 7500 connections from liability is discriminatory and violative of article 14 of the Constitution of India because the State could not bring to our notice any distinction between those operators with less than 7500 connections and those with 7500 or above connections with the object of levy of luxury tax at the rate of ₹ 5 per month per person enjoying connection. We therefore, declare the levy of luxury tax on cable TV operators with above 7500 connections as discriminatory and violative of article 14 of the Constitution of India, and hence unconstitutional. Allow the WP(C) by declaring the impugned provisions of the Act authorizing levy and collection of luxury tax on cable TV operators including the petitioners with connections of 7500 or above as discriminatory and hence unconstitutional and invalid.
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2012 (6) TMI 762
Issues: Assessment based on returns filed, Jurisdiction of assessing officer
In the present case, the petitioner filed monthly returns for the period from April 1, 2006, to December 31, 2006. The respondent issued a notice and later a revised notice, calling for objections from the petitioner. The petitioner contended that the revised notice was illegal and without jurisdiction, as it did not follow the provisions of section 87A and rule 8(8)(a) of the Tamil Nadu Value Added Tax Act, 2006. The respondent argued that assessment for the mentioned period should be based on the returns filed by the petitioner as per section 87A of the Act.
The court examined section 87A of the Act and rule 8(8)(a), which state that the assessment for the specified period should be done based on the returns filed by the dealer, without calling for any additional particulars. It was observed that the respondent had issued the revised notice without adhering to these provisions, rendering it unsustainable and without jurisdiction.
Accordingly, the court set aside the revised notice dated June 8, 2012, and directed the respondent to complete the assessment for the period from April 1, 2006, to December 31, 2006, in accordance with section 87A of the Act and rule 8(8)(a). The court ruled in favor of the petitioner, highlighting the importance of following the prescribed procedures u/s the Act for assessments and passing appropriate orders as per the law.
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2012 (6) TMI 761
Issues involved: Assessment order challenged on grounds of natural justice and proper consideration of objections.
Summary:
The petitioner, a registered dealer engaged in civil works, challenged an assessment order dated May 18, 2012, issued by the respondent. The petitioner contended that despite submitting detailed objections on December 28, 2008, and December 30, 2008, in response to a notice dated December 4, 2008, the respondent passed the assessment order without considering the objections. The respondent claimed to have sent a notice on October 30, 2008, to which the petitioner did not respond, but no such notice was found in the records. The High Court found that the assessment order violated the principles of natural justice as the objections were not considered properly. The Court quashed the assessment order and directed the respondent to reconsider the matter, giving the petitioner an opportunity to substantiate their claim. The respondent was instructed to pass a new order expeditiously, preferably within six weeks of receiving the Court's order, after considering the objections dated December 28, 2008, and December 30, 2008.
The petitioner, a registered dealer undertaking contracts with Government entities, challenged an assessment order issued by the respondent on grounds of natural justice and proper consideration of objections. The petitioner had submitted detailed objections in response to a notice dated December 4, 2008, but the assessment order was passed without due consideration of these objections. The respondent alleged sending a notice on October 30, 2008, to which the petitioner did not respond; however, no record of such notice was found. The High Court held that the assessment order violated natural justice principles by not properly considering the objections. Consequently, the Court quashed the assessment order and directed the respondent to reevaluate the matter, allowing the petitioner to support their claim. The respondent was mandated to issue a new order promptly, preferably within six weeks of receiving the Court's directive, after reviewing the objections submitted on December 28, 2008, and December 30, 2008.
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2012 (6) TMI 760
Levy CST on the total turnover which included direct export sales as well - requiring to produce H forms - Held that:- If the sale of goods is by way of export out of territory of India, it is not exigible the moment the transfer of documents of title to the goods is complete, i.e., after the goods crossed the customs frontiers of India. In addition to this, as per section 5(3) of the CST Act, the last sale or purchase of any goods preceding the sale or purchase occasioning the export of goods out of the territory of India shall be deemed to be export sale, if such sale took place for the purpose of complying with the agreement or order with relation to such export. When the export sales are not exigible under the CST Act, requiring to produce H forms which is relevant in the context of situation under section 5(3) would be unauthorised. Any assessment under such wrong premise would also be unauthorised by law. Be it reiterated that export sale is not in the course of inter-State trade or commerce and levy of tax thereon is unsustainable.
In all matters, the CTO misdirected himself and passed the assessment orders. A misdirection in law is a jurisdictional error, and therefore, the impugned assessment orders cannot be sustained. They are liable to be set aside.
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2012 (6) TMI 759
Whether the Appellate Tribunal was correct in law in reversing the 1st Appellate Order and OTRev.37 of 2012 confirming the denial of input tax credit made in Annexure A order on the purchases, particularly considering the fact that the entire purchases are made only from M/s. Malabar Cements India Limited, after payment of tax and the purchases are supported with tax suffered invoices issued by the supplier?
Whether on the facts and circumstances of the case the Annexure A and C orders of the Authorities below to the extent it demands levy of tax on the estimated turnover without giving input tax credit on the purchases supported with proper invoice is arbitrary and illegal?
Held that:- The dealer has claimed in the revision that the purchases are supported by tax suffered invoices issued by the supplier as evidenced by the first question of law raised. Admittedly, purchases were suppressed in the books of accounts as also the returns and the explanation offered has been rejected both by the original authority as well as the first appellate authority. Dealer/revision petitioner has not thought it fit to challenge the said findings. It was the State who was before the Tribunal challenging the grant of input tax credit by the first appellate authority. The scheme of the Act as noticed above would require the input tax credit to be claimed along with the return, supported by tax suffered invoices and the quantum of eligible credit being determinable as reflected from the books of accounts. The assessee has admittedly not disclosed the transaction in his books of OTRev.37 of 2012 : accounts or his return nor has he filed any revised return.
The fact that the purchases were made from the Government Company, as noticed earlier does not automatically entitle a dealer to claim input tax credit. And if the purchases are tax suffered; input tax credit will have to be claimed and availed of as per the provisions of the Act. On the finding that there is no such attempt made by the dealer and on the further ground that the dealer has suppressed his turnover both the questions of law are answered against the assessee/revision petitioner and in favour of the Revenue. OT Revision is hence rejected.
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2012 (6) TMI 758
Remission of duty - loss of molasses due to leakage - Held that:- After the accident, was reported to the Department, the officials from the Commissionerate visited the factory of the appellant. There is nothing on the record that the excise team on inspection found some mischief or reported that the accident was not genuine. Thus, there is no dispute regarding the loss of molasses. As regards, the plea that the accident was avoidable it is sufficed to say that every accident is on account of lack of precaution on the part of the personnel responsible for avoiding such incident. Nobody deliberately would indulge in an exercise which may result in huge loss. Therefore, we are of the view that interpreting Rule 21 of the Central Excise Rules, the authorities are required to be liberal otherwise restrictive construction to Rule 21 would make it inoperable and redundant. In our aforesaid view, we are supported by the judgment of Hon’ble Rajasthan High Court in the matter of Union of India v. Hindustan Zinc Ltd. (2008 (10) TMI 63 - HIGH COURT RAJASTHAN). Commissioner ought to have allowed the remission of excise duty particularly when there is no evidence to show any mala fide intention to evade the excise duty - Decided in favour of assessee.
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2012 (6) TMI 757
Availment of CENVAT Credit - Non maintenance of separate accounts - Held that:- Bagasse emerges in course of crushing of the sugarcane. It may be noted that crushing of sugarcane is necessary to extract canesugar juice which in turn is processed for production of sugar and molasses. Bagasse is the waste product left after the crushing of sugarcane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse. Thus, in our considered view, the amendment in Finance Act, cited by Shri Sanjay Jain, AR and the Board’s Circular would not make any difference in the facts and circumstances of the case. Moreover, neither the show cause notice nor the impugned order-in-appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final product) and bagasse (exempted final product. Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any inputs-chemicals, etc., having been used at that stage - Decided in favour of assessee.
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2012 (6) TMI 756
Availment of Cenvat credit - penalty imposed under Rule 13 of Cenvat Credit Rules - Held that:- provisions of Rule 13 of Cenvat Credit Rules, 2002 was applicable only to the person who availed Cenvat credit and penalty under the said rule cannot be imposed on the Director of company which availed Cenvat credit wrongly - Decided in favour of assessee.
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2012 (6) TMI 755
Penalty u/s 11A(1A) - Whether after conclusion of proceedings against an assessee under Section 11A(1A), a separate proceeding imposing penalty on the Director of the company can survive - clandestine manufacture and clearance of excisable goods - Held that:- The provisions in the first proviso to Section 11A(2) is very clear that if the proceeding against an assessee is concluded under Section 11A(1), further proceedings against any other person to whom notice was served under sub-section (1) of Section 11A also are to be treated as closed - Decided against Revenue.
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2012 (6) TMI 754
Rejection of a claim for refund of duty - Unjust enrichment - Held that:- refund claim was filed on 17.3.2008 and the same was of the excess duty paid for the period from May 2006 to January 2007. The claim was clearly barred by limitation. Further, there is nothing on record to indicate that any meaningful attempt was made by the assessee to rebut the statutory presumption of unjust enrichment. The grounds of this appeal are sketchy and hardly constitute any valid challenge to the appellate Commissioner’s order - Decided against assessee.
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9911796707
