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2009 (6) TMI 1012
Issues involved: Re-determination of Annual Capacity Production (ACP) u/s Rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 leading to duty liability as per Rule 96ZB of Central Excise Rules, 1944.
The judgment by Appellate Tribunal CESTAT CHENNAI pertains to the re-determination of Annual Capacity Production (ACP) of the appellants' re-rolling mills u/s Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. The Commissioner of Central Excise had directed the assessee to discharge duty liability based on the re-determined ACP, following the procedure under Rule 96ZB of the Central Excise Rules, 1944, up to 31.3.2000, and thereafter on an ad valorem basis.
In the appeal against the above order, the Tribunal considered the argument put forth by the ld. Counsel for the appellants regarding the applicability of Rule 5 in cases where there is a reduction in the ACP due to changes in parameters. Citing the Larger Bench decision in Sawanamal Shibumal Steel Rolling Mills Vs. CCE, Chandigarh [2001 (127) ELT 46 (Tri.LB)], and the Tribunal's decision in Rajnish Steel Industries Vs. CCE, Rajkot [2002 (149) ELT 348 (Tri.Mumbai)], it was established that Rule 5 applies only when there is no change in the annual capacity of production or when the capacity is increased due to changes in machinery. Rule 5 does not apply when changes in machinery result in a reduction in the ACP. Consequently, the impugned order was set aside, and the appeal was allowed.
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2009 (6) TMI 1011
Issues Involved:
1. Admissibility of the document dated 12-04-2006.
2. Sending the document to a handwriting expert.
3. Sending the document to the Revenue Divisional Officer for stamp duty and penalty.
4. Rejection of the document as inadmissible.
Summary:
Issue 1: Admissibility of the Document
The core issue was whether the document dated 12-04-2006, styled as a Relinquishment Deed, was admissible in evidence. The petitioners argued that the document should be considered at the final disposal stage of the suit and not prejudged. They contended that the document, though unregistered, was crucial for their case. The respondents countered that the document was inadmissible due to non-registration and insufficient stamping, as it involved relinquishment of rights in immovable property worth more than Rs. 100, requiring registration u/s 17 of the Indian Registration Act. The court concluded that the document was inadmissible for want of registration and insufficient stamping.
Issue 2: Sending the Document to a Handwriting Expert
The petitioners sought to send the document to the Director of Forensic Science for comparison of disputed signatures. The respondents opposed this, arguing that since the document was inadmissible, sending it for signature comparison was unnecessary. The court agreed with the respondents, stating that sending an inadmissible document for handwriting analysis would be futile.
Issue 3: Sending the Document to the Revenue Divisional Officer
The petitioners also requested that the document be sent to the Revenue Divisional Officer for levying and collecting deficit stamp duty and penalty. The respondents argued that even if the stamp duty deficiency was cured, the document would still be inadmissible due to non-registration. The court upheld this view, noting that the document's inadmissibility could not be remedied merely by paying the stamp duty and penalty.
Issue 4: Rejection of the Document
The plaintiff filed an application u/s Order 13 Rules 3 and 6 of the Code of Civil Procedure to reject the document as inadmissible. The court, after examining the document and relevant legal precedents, allowed this application. It emphasized that it is the court's duty to reject any document deemed irrelevant or inadmissible at any stage of the suit.
Conclusion:
The court dismissed the Civil Revision Petitions (C.R.Ps) filed by the petitioners, affirming the lower court's common order that the document dated 12-04-2006 was inadmissible in evidence due to non-registration and insufficient stamping. The court found no legal infirmity in the lower court's decision and thus dismissed the petitions at the admission stage, with no order as to costs.
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2009 (6) TMI 1010
Issues Involved:
1. Allegations of oppression and mismanagement under Sections 397, 398, 402, 406, 209, and 235 of the Companies Act, 1956.
2. Validity of share transfers and the petitioners' shareholding status.
3. Maintainability of the petition under Section 399 of the Companies Act, 1956.
4. Alleged illegal sale of the company's land.
5. Collusion between the petitioners and respondents.
6. Petitioners' conduct and clean hands principle.
Detailed Analysis:
1. Allegations of Oppression and Mismanagement:
The petitioners alleged that respondents Nos. 2 to 4, in their capacity as directors, breached their fiduciary duty by seeking to sell the only valuable asset of the company at a grossly underquoted price for personal gain. The petitioners also claimed that they were kept in the dark about the company's affairs, including not receiving notices for board meetings and annual general meetings. The respondents allegedly attempted to oust the petitioners from the management and affairs of the company.
2. Validity of Share Transfers and Petitioners' Shareholding Status:
The petitioners claimed that they collectively held 38,070 equity shares, constituting 53% of the total paid-up capital of the company. However, the respondents contended that the petitioners had sold their shares to the respondents in 2002 and did not hold any shares at the time of filing the petition. The respondents argued that the petitioners had handed over signed share transfer forms and share certificates as security against loans, which were later used to transfer the shares to the respondents.
3. Maintainability of the Petition under Section 399:
The respondents raised a preliminary objection that the petition was not maintainable under Section 399 of the Companies Act, 1956, as the petitioners did not hold the requisite number of shares at the time of filing the petition. The court noted that the petitioners had not provided any documentary evidence to prove their shareholding on the date of filing the petition. The court emphasized that Section 399 stipulates minimum qualifications for members to file a petition under Sections 397 and 398, and these requirements are mandatory.
4. Alleged Illegal Sale of the Company's Land:
The petitioners alleged that the respondents attempted to sell the company's land at an undervalued price and entered into an agreement to sell the land without proper authorization. The respondents denied these allegations and argued that the petitioners had no standing to challenge the sale as they were no longer shareholders. The court found that the petitioners had not provided sufficient evidence to support their claims regarding the illegal sale.
5. Collusion between the Petitioners and Respondents:
Respondent No. 7 argued that the petitioners and respondents Nos. 1 to 6 colluded in filing the petition. The court noted that the petitioners did not file a rejoinder to respondent No. 7's reply, effectively admitting the correctness of the allegations. The court found that the petitioners had suppressed material facts and had not come to the Company Law Board with clean hands.
6. Petitioners' Conduct and Clean Hands Principle:
The court emphasized that the petitioners must come with clean hands to seek equitable relief under Sections 397 and 398. The court found that the petitioners had made false statements and suppressed material facts, including their shareholding status and the filing of annual returns. The court held that the petitioners' conduct disqualified them from seeking relief in an equitable jurisdiction.
Conclusion:
The court dismissed Company Petition No. 27 of 2007 as not maintainable under Section 397/398 of the Companies Act, 1956, due to the petitioners not having the requisite qualification under Section 399 and coming to the Company Law Board with unclean hands. The court also found that no case of oppression and mismanagement was made out on merits. All interim orders were vacated, and no order as to costs was made.
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2009 (6) TMI 1009
Issues involved:
The issues involved in this case are the rejection of a refund claim by the Commissioner (A) on the grounds of time bar and the subsequent appeal by the respondent challenging this decision.
Issue 1: Refund Claim Rejection
The respondent imported components from M/s. Hitachi Koki India Ltd., Japan, and faced provisional assessments by the Special Valuation Branch, Chennai. After a series of orders and appeals, the Deputy Commissioner, SVB accepted the transaction values declared in the invoices for imported components. The respondent sought a refund of excess amount paid, which was rejected by the Assistant Commissioner, Refunds, ACC, citing time limitations. The Commissioner (A) set aside this rejection, emphasizing that the disputed amount was an extra duty deposit, not customs duty, and thus not subject to the time limit under Section 27 of the Customs Act, 1962. The Commissioner (A) relied on previous tribunal decisions, including MICO v. CC, Chennai, to support the refund claim.
Issue 2: Tribunal Decision
The Tribunal considered the submissions from both sides and upheld the Commissioner (A)'s decision. It noted that the extra duty deposit in question was not equivalent to customs duty and should be refunded automatically after final assessment and cancellation of PD bonds. The Tribunal highlighted the importance of distinguishing between duty deposit and actual duty payable. It referenced the MICO case and a similar decision by the Chennai Bench in CC v. Sayonara Exports Pvt. Ltd. to support its ruling. Additionally, the Tribunal found that the respondent had requested the refund as early as 15.7.2004, well within the time limit, and that the facts of the present case differed significantly from the GMMCO Ltd. case cited by the revenue. Consequently, the Tribunal rejected the revenue's appeal and disposed of the respondent's Cross Objection in favor of upholding the refund claim.
This summary provides a detailed overview of the legal judgment, highlighting the key issues, arguments presented, and the Tribunal's decision in response to the appeal.
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2009 (6) TMI 1008
Issues Involved:
1. Liability of the employer (second respondent/second defendant) for the tortious acts of the employee (first respondent/first defendant) under the principle of vicarious liability.
2. Negligence of the employer in preventing the theft of share certificates.
3. Determination of whether the wrongful acts were committed during the course of employment.
Issue-Wise Detailed Analysis:
1. Liability of the Employer for the Tortious Acts of the Employee:
The primary issue is whether the second respondent/second defendant (employer) can be held vicariously liable for the tortious acts committed by the first respondent/first defendant (employee). The appellant/plaintiff argued that the employer is vicariously liable for the fraudulent acts of the employee, committed during the course of employment. The trial court, however, concluded that the liability for the fraud committed by the first respondent/first defendant rests solely with him and not with the second respondent/second defendant. The court emphasized that for vicarious liability to be established, the wrongful act must be authorized by the employer or be a wrongful and unauthorized mode of doing something authorized by the employer.
2. Negligence of the Employer in Preventing the Theft of Share Certificates:
The appellant/plaintiff contended that the second respondent/second defendant was negligent in allowing the employee to meddle with the share certificates lodged for transfer. The appellant/plaintiff argued that the second respondent/second defendant failed in its duty to take diligent care to prevent the theft of shares, thereby making them liable for the loss sustained. The court, however, found that the second respondent/second defendant had taken appropriate actions upon discovering the fraud, including terminating the employee's services, lodging a police complaint, and reporting the matter to SEBI and stock exchange authorities. The court determined that the employer's actions did not constitute negligence sufficient to establish liability.
3. Determination of Whether the Wrongful Acts Were Committed During the Course of Employment:
The court examined whether the fraudulent acts of the first respondent/first defendant were committed during the course of his employment with the second respondent/second defendant. The evidence showed that the first respondent/first defendant was employed in the Speciality Coatings Division, not the secretarial division, and that he had independently committed the fraud by impersonating another individual and selling the stolen shares. The court concluded that the wrongful acts were independent, personal, and unauthorized, and therefore, not committed in the course of employment. Consequently, the employer could not be held vicariously liable for these acts.
Conclusion:
The court affirmed the trial court's judgment, concluding that the second respondent/second defendant (employer) could not be held liable for the fraudulent acts of the first respondent/first defendant (employee) under the principle of vicarious liability. The appeal was dismissed, and the judgment and decree passed by the trial court were upheld. The court directed that each party bear its own costs in the appeal.
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2009 (6) TMI 1007
Sales tax benefits - package scheme - eligibility certificate - Circular no.2 of 1998 dated 17.1.1998 - Certificate of Entitlement dated 16.1.2001 - Held that: - from 01.12.2000 onwards the production to the extent of 78.95% of the total production shall be apportioned as production of a Unit in Expansion relevant for this Entitlement Certificate. The Entitlement Certificate is based on the ratio of investments for prorata computation, the benefits shall be available till the time period or the monetary ceiling whichever gets exhausted early. The production to the extent of 21.05% shall be apportioned to the Existing Unit. Corresponding to this production at 21.05% when the sales takes place the liability for payment of taxes shall be discharged by making payment of taxes into Govt. Treasury and the same shall be admitted in returns furnished thereafter. The same proportion is available for procuring raw-material without payment of taxes to suppliers on finishing declarations in respect of Expansion Unit.
The Deputy Commissioner of Sales tax could not impose the conditions as per paras 4 and 5 of the Trade Circular dated 17.1.1998 and the above referred conditions in the Entitlement Certificate and, therefore, to that extent the said Circular and the conditions in the Certificate of Entitlement are liable to be set aside.
Appeal allowed - decided in favor of appellant.
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2009 (6) TMI 1006
Issues involved: Liability admission before Settlement Commission, imposition of penalty, supply of invoices without supplying goods, fake claim leading to Cenvat credit, waiver of pre-deposit, stay application dismissal.
The judgment by Appellate Tribunal CESTAT NEW DELHI involved the case where the principal noticees admitted liability before the Settlement Commission, resulting in the imposition of a penalty of Rs. 11,57,062. The appellants were found to be involved in the offence of supplying invoices without supplying goods, leading to a mere paper transaction. The fraudulent act allowed the beneficiary to enjoy Cenvat credit, and the appellants were penalized for perpetuating the offence through paper transactions. The Tribunal, after considering the facts, dismissed the stay application of the appellant, citing a prima facie case against them and following the precedent set in the case of Benera Valves Ltd. Vs. CCE. The appellants were directed to make a pre-deposit of the entire demand within four weeks from the judgment date to protect the interest of Revenue.
In the judgment, the Tribunal noted that the appellants, despite not having the necessary machinery, engaged in paper transactions without manufacturing goods, leading to the perpetuation of the offence. The Tribunal found that the evidence presented did not warrant a waiver of pre-deposit, as the Revenue had a prima facie case against the appellants. The decision to dismiss the stay application was based on protecting the interest of Revenue and ensuring compliance with the Settlement Commission's order. The appellants were given a deadline to make the required pre-deposit to proceed with the appeal process.
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2009 (6) TMI 1005
The Calcutta High Court dismissed the appeal by Pepsico India Holdings regarding breakage of bottles for aerated water, as the Customs Tribunal found the breakage percentage reasonable and duty meagre. No substantial question of law was identified. The appeal and stay application were dismissed without costs.
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2009 (6) TMI 1004
Issues involved: Whether the Magistrate can decide on property exclusion u/s 31(i) of SARFAESI Act while considering application for assistance u/s 14.
Summary:
1. The Writ Petition challenges the appointment of an Advocate Commissioner to take possession of an agricultural land under Section 14 of the SARFAESI Act, invoking exclusion under Section 31(i).
2. The respondent Bank asserts that the property was not cleared of liability despite opportunities, leading to the possession proceedings before the Magistrate's Court.
3. The petitioners argue that the property being agricultural land is excluded from SARFAESI Act's purview u/s 31(i), which the Magistrate should have considered before issuing orders under Section 14.
4. The petitioners did not disclose earlier proceedings before DRT, leading the respondent to argue for dismissal based on lack of clean hands.
5. The Magistrate's role u/s 14 is limited to determining if the property is a secured asset, not its nature. The petitioners' contention on agricultural land exclusion falls under the Act's purview, not the Magistrate's jurisdiction.
6. Citing precedents, the Court emphasizes that the Magistrate's role is confined to assisting in taking possession of secured assets, not deciding on exclusion under Section 31(i).
7. As the property is a secured asset, the Magistrate had no jurisdictional error in appointing the Advocate Commissioner. The Writ Petition is dismissed.
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2009 (6) TMI 1003
Issues involved: Challenge to levy of Electricity Tax and Belated Payment Surcharge (B.P.S.C.)
Summary:
The petitioner, a High Tension Consumer, challenged the levy of Electricity Tax under the Tamil Nadu Electricity (Taxation on Consumption) Act 1962. The respondent demanded a sum of Rs. 23,02,065/- including arrears of Electricity Tax. The petitioner paid the amount in 12 monthly installments. Subsequently, the respondent raised a bill for belated payment surcharge (B.P.S.C.) of Rs. 2,34,308/- on the Electricity Tax for the period from June 2002 to August 2004. The petitioner filed a writ petition seeking to quash this surcharge, citing Rule 4(xi) of the Tamil Nadu Electricity Supply Code 2004.
The respondent argued that the surcharge was justified as the petitioner failed to pay the dues on time, and the Tamil Nadu Electricity Supply Code did not prohibit levying B.P.S.C. before September 2004. The petitioner relied on a previous judgment to support their claim that the surcharge should not be collected due to the pendency of the writ petition and appeal challenging the levy of Electricity Tax.
The court considered the arguments of both parties and concluded that while the respondent was entitled to collect surcharge on consumption charges, they had no right to levy surcharge on Electricity Tax. The court highlighted the legal provisions regarding the collection of Electricity Tax and surcharge, emphasizing that the licensee (respondent) acts as a collecting agent for the Government, and only the Government can impose interest on belated payment of Electricity Tax.
Therefore, the court allowed the writ petition, setting aside the demand for belated payment surcharge on Electricity Tax. The respondent was not entitled to levy any surcharge on the Electricity Tax amount.
This judgment clarifies the distinction between surcharge on consumption charges and Electricity Tax, emphasizing the legal obligations of the licensee in collecting and remitting Electricity Tax to the Government.
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2009 (6) TMI 1002
Issues involved: Entitlement to Cenvat credit on outdoor catering service u/s 46 of the Factories Act for supply of food to factory employees.
Summary:
Issue 1: Entitlement to Cenvat credit on outdoor catering service
The appeal considered whether the respondent is entitled to Cenvat credit on outdoor catering service used in the factory-canteen for supplying food to factory employees during August 2006 to March 2007. The Tribunal's Larger Bench decision in a previous case was cited, which established that outdoor catering services used for supplying food in the factory canteen fell within the ambit of 'input service' under Rule 2 of the Cenvat Credit Rules, 2004. It was held that Cenvat credit of the tax paid on such service was admissible to the manufacturer if certain conditions were met. The appellant did not dispute the liability to maintain a canteen under the Factories Act or that the expenses of supplying food in the canteen formed part of the cost of production of excisable goods during the disputed period. Consequently, the order granting the benefit of Cenvat credit to the assessee for the period in question was upheld, and the Revenue's appeal was dismissed.
Conclusion:
The Tribunal upheld the lower appellate authority's decision to grant Cenvat credit on outdoor catering services for the disputed period, based on the applicability of the Larger Bench decision and the fulfillment of relevant criteria.
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2009 (6) TMI 1001
Issues Involved:
1. Deduction u/s 80IB(10) for housing projects.
2. Erroneous and prejudicial assessment by AO.
3. Proportionate deduction for units exceeding built-up area.
4. Commencement and completion of housing projects.
5. Disallowance u/s 14A.
Summary:
1. Deduction u/s 80IB(10) for housing projects:
The assessee claimed a deduction u/s 80IB(10) for housing projects, which was partially allowed by the AO due to non-furnishing of completion certificates for certain projects. The CIT, however, set aside the assessment, questioning the AO's failure to make necessary inquiries regarding the date of completion, maximum built-up area, and disallowance u/s 14A.
2. Erroneous and prejudicial assessment by AO:
The CIT deemed the AO's order erroneous and prejudicial to revenue, citing the Supreme Court decisions in Rampyari Devi Saraogi vs. CIT and Tara Devi Aggarwal vs. CIT, and the jurisdictional High Court in Gee Vee Enterprises vs. Addl. CIT. The CIT argued that the AO did not adequately verify the conditions for deduction u/s 80IB(10).
3. Proportionate deduction for units exceeding built-up area:
The Tribunal held that even if some units exceeded the statutory limit of 1000 sq. ft., the assessee should still be entitled to proportionate deduction for eligible units. This view was supported by decisions in Bengal Ambuja Housing Developments Ltd., Delhi Iron and Steel Pvt. Ltd., and DCIT vs. Brigade Enterprises Pvt. Ltd.
4. Commencement and completion of housing projects:
The Tribunal found that the AO had made sufficient inquiries and that the assessee had complied with the conditions for deduction, including the commencement and completion dates of the projects. The Tribunal noted that the definition of "built-up area" was inserted by the Finance (No.2) Act, 2004, effective from 1.4.2005, and thus not applicable to the assessment years in question.
5. Disallowance u/s 14A:
No submissions were made regarding disallowance u/s 14A, and the CIT's order setting aside the assessment on this ground was upheld.
Conclusion:
The Tribunal vacated the CIT's order, restoring the AO's assessment, except for the disallowance of deduction for units exceeding the built-up area of 1000 sq. ft. The appeals were partly allowed.
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2009 (6) TMI 1000
Issues Involved:
1. Reduction in depreciation by reducing loan waived by the Government of India from the cost of assets.
2. Addition in respect of deferred revenue expenses.
3. Disallowance of interest of 8% payable to KFW, Germany.
4. Disallowance of 10-year bond issue expenses.
5. Disallowance of expenditure incurred in relation to water supply and sewerage plant.
6. Treating liability on account of employees benefit scheme as deferred revenue expenditure.
7. Disallowance of claim on account of public deposit scheme interest provided for earlier years for late renewal of deposits by the depositors.
8. Disallowance of expenses under section 14-A of the Act.
9. Depreciation on mining rights.
Issue-Wise Detailed Analysis:
1. Reduction in Depreciation by Reducing Loan Waived by the Government of India from the Cost of Assets:
The first issue relates to the reduction in depreciation by reducing the loan waived by the Government of India from the cost of assets. The assessee, a public sector company, received loans from the Steel Development Fund (SDF) for modernization and expansion. These loans were waived by the Government, and the assessee reduced the Written Down Value (WDV) of its fixed assets by the waived loan amount. The assessing officer disallowed the claim of depreciation on the original WDV of the assets, arguing that the waiver of the loan should reduce the actual cost of the assets as per section 43(1) of the Act. The CIT (Appeals) upheld this view, stating that the waiver of the loan by the Government effectively reduced the cost of the assets. The Tribunal agreed, citing that the waiver of the loan was akin to a subsidy and should reduce the actual cost of the assets per Explanation 10 to section 43(1).
2. Addition in Respect of Deferred Revenue Expenses:
The second issue involves the addition in respect of deferred revenue expenses. The assessee claimed expenses under the Voluntary Retirement Scheme (VRS) and other heads as revenue expenditure but amortized them in the books of accounts. The assessing officer and CIT (Appeals) allowed the spread of these expenses over five years, citing the long-term benefits derived from these expenditures. However, the Tribunal held that these expenses were revenue in nature and should be allowed in the year incurred, referencing the ITAT's decision in CIT vs. Ashiana Syntex Ltd. and other relevant case laws.
3. Disallowance of Interest of 8% Payable to KFW, Germany:
The third issue pertains to the disallowance of interest payable to KFW, Germany. The assessee had taken a loan from KFW at an interest rate of 8.75%, but only 0.75% was paid directly, with the remaining 8% allocated to reserves for pollution control and foreign exchange fluctuation. The assessing officer disallowed the 8% interest, but the Tribunal, following its decision in the assessee's case for the assessment year 1998-99, directed the assessing officer to allow the full interest claim, as there was no waiver of liability by KFW.
4. Disallowance of 10-Year Bond Issue Expenses:
The fourth issue involves the disallowance of expenses related to the issuance of non-convertible bonds. The assessing officer treated these expenses as capital expenditure and allowed only 1/10th under section 35-D. The Tribunal, referencing its decision in the assessee's case for the assessment year 1998-99, held that these expenses were revenue in nature and should be allowed in the year incurred.
5. Disallowance of Expenditure Incurred in Relation to Water Supply and Sewerage Plant:
The fifth issue concerns the disallowance of depreciation on water supply and sewerage plants used for both factory and residential purposes. The assessing officer allowed depreciation on only 25% of the plant's value. The Tribunal, following its earlier decisions, directed the assessing officer to treat the entire water supply and sewerage plant as 'plant and machinery' for depreciation purposes.
6. Treating Liability on Account of Employees Benefit Scheme as Deferred Revenue Expenditure:
The sixth issue relates to treating the liability on account of the employees' benefit scheme as deferred revenue expenditure. The assessee claimed the entire liability based on actuarial valuation. The assessing officer allowed only the actual payment for the year. The Tribunal upheld this view, stating that the liability should be recognized on a year-to-year basis and not in one go.
7. Disallowance of Claim on Account of Public Deposit Scheme Interest Provided for Earlier Years for Late Renewal of Deposits by the Depositors:
The seventh issue involves the disallowance of interest on public deposits renewed late. The assessing officer disallowed the interest, treating it as a prior period expense. The Tribunal remanded the matter to the assessing officer to examine whether the interest liability crystallized in the year under consideration or was merely a reconciliation difference.
8. Disallowance of Expenses Under Section 14-A of the Act:
The eighth issue on the disallowance of expenses under section 14-A was not pressed during the hearing and was dismissed.
9. Depreciation on Mining Rights:
The ninth issue concerns the claim for depreciation on mining rights. The assessing officer disallowed the claim, stating that mining rights were not enumerated as eligible intangible assets. The Tribunal remanded the matter to the assessing officer to verify the date of acquisition of mining rights and examine whether they qualify as intangible assets under the relevant provisions.
Conclusion:
The Tribunal partly allowed the appeals, providing specific directions for each issue based on the legal provisions and precedents. The order emphasized the need for a detailed examination of facts and adherence to statutory provisions in determining the allowable claims.
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2009 (6) TMI 999
The High Court of Bombay dismissed the appeals as the questions were covered by a previous judgment. The appeals were heard together and dismissed with costs.
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2009 (6) TMI 998
The Appellate Tribunal CESTAT Ahmedabad allowed the stay petition unconditionally for a case involving service tax on GTA services. The appellant availed 75% abatement but was denied it due to lack of declaration on non-availment of cenvat credit by the service provider. The Tribunal waived the penalty imposed during the appeal, citing a previous case where abatement was allowed even without a declaration.
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2009 (6) TMI 997
Production of documents under Order 47 of the Code of Civil Procedure - Held that: - One cannot hold that the litigation has to be indefinitely postponed for implementing the final decision. We do not find any error apparent on the face of the record; nor any valid reasons for the non-production of the documents at an early stage as well. No sufficient reason is shown to receive the documents under Order 47 of the CPC - the review petition lacks merits and is dismissed.
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2009 (6) TMI 996
Issues Involved: Income tax appeals involving multiple parties and respondents.
Summary:
The High Court of Bombay heard a multitude of income tax appeals involving various appellants and respondents. The appeals were filed by the Commissioner of Income Tax, Ornate Traders Pvt. Ltd., The Director of Income Tax, and others against entities such as M/s. Santogen Silk Mills Ltd., M/s. Trilok Shipbreakers Ltd., The Premier Ltd., and several individuals and corporations. The case was presided over by Judges C. Daga and J.P. Devadhar. The legal representatives for the appellants included Mr. P.C. Tripathi, Mr. R. Asokan, and Ms. Sandhya Chavan, among others. On the other side, the respondents were represented by Ms. P. Karande, Mr. A.K. Jasani, Mr. B.V. Jhaveri, and other legal counsels.
The court issued an order directing the appellant to address any office objections and serve all unserved respondents within four weeks. The appellant was allowed to use Hamdast service, and in addition, private service by R.P.A.D./Speed Post was permitted. The order specified that failure to comply with the directives regarding office objections and serving unserved respondents would result in the dismissal of appeals against the unserved respondents without further court intervention.
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2009 (6) TMI 995
The Appellate Tribunal CESTAT AHMEDABAD ruled in favor of the appellant, a 100% EOU, regarding the calculation of eligibility for deemed exports. The decision was based on previous rulings, including one by the Larger Bench in the case of Juned Bilal Memon. The appeal was allowed with consequential relief to the appellant.
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2009 (6) TMI 994
Issues:
1. Applicability of Compounded Levy Scheme under Rule 96ZP of the CER, 1944 to a steel Rolling Mill.
2. Dispute regarding assessment based on actual production versus Annual Production Capacity (APC) determination.
3. Legal implications of Supreme Court and High Court orders on duty assessment.
4. Commissioner's decision on APC fixation and subsequent demands.
5. Interpretation of Section 3A and relevant legal precedents.
6. Consideration of appellant's submissions and departmental observations.
7. Decision on APC fixation and duty liability based on actual production.
Analysis:
1. The appellant, a steel Rolling Mill, falls under Chapter 72 of CETA, 1985 and was part of the Compounded Levy Scheme under Rule 96ZP. The dispute arose due to conflicting orders from the Hon'ble Delhi High Court, Supreme Court, and Gujarat High Court regarding the assessment of duty based on actual production versus the APC determined by the Revenue.
2. The appellant contended that post-Supreme Court directions, duty should be assessed on actual production, not APC. The absence of a saving clause in Section 3A and Rule 96ZP was highlighted to argue that pending cases should lapse. The appellant consistently sought duty payment based on actual production, citing legal precedents and challenging the Commissioner's orders fixing APC for multiple years.
3. The legal battle involved the appellant's applications for actual production assessment, the Revenue's insistence on APC-based duty demands, and the High Court's directive for the Commissioner to decide on the matter. The Tribunal considered the Supreme Court's final decision and the appellant's right to APC fixation based on actual production, leading to a remand to the Commissioner for recalculating duty.
4. The Commissioner's observations on the appellant's declarations, APC fixation, and duty confirmation based on APC were scrutinized. The Tribunal acknowledged the appellant's submissions, the evolving legal landscape post-Supreme Court judgment, and the need to rectify duty assessment discrepancies arising from APC fixation.
5. The Tribunal analyzed the legal arguments regarding Section 3A's deletion, the impact on APC fixation, and the appellant's entitlement to duty assessment based on actual production. The interplay of legal principles, precedents, and court orders shaped the Tribunal's decision to uphold the appellant's claim for APC fixation on actual production basis.
6. The appellant's contentions, the department's stance, and the Commissioner's findings were carefully examined. The Tribunal noted discrepancies in APC determination, the appellant's consistent requests for actual production assessment, and the legal obligations post-Supreme Court ruling, leading to a favorable decision for the appellant.
7. Ultimately, the Tribunal allowed the appeal, remanding the matter to the Commissioner for recalculating APC based on actual production from a specified date. The decision emphasized the appellant's right to accurate duty assessment, the legal implications of court orders, and the need to rectify duty demands based on APC discrepancies.
This detailed analysis covers the key issues, legal arguments, court orders, and the Tribunal's decision in the case before the Appellate Tribunal CESTAT, AHMEDABAD.
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2009 (6) TMI 993
The appellant requested transfer of case to Ahmedabad Bench due to location issue. Tribunal rejected request, advised to apply to Hon'ble President within two months. If not done, appeal will be heard by current Bench. Appellant must file copy of application with registry.
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9911796707
