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Showing 341 to 360 of 420205 Records
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2024 (11) TMI 1138
Service tax under renting of immovable property - renting of residential quarters by a government corporation to employees of contractors for residential purposes - renting of the residential dwelling for use as residences listed in negative list - invoking extended period - HELD THAT:- We find that the appellant have given their residential quarters to the employee of contractor for residential purpose. It is admitted fact that the residential quarters are not used for any commercial purpose whereas, the same is used for only residential purpose.
As per renting of residential quarter as listed in the negative list it is absolutely clear that any residential house given on rent for use as residence is not taxable service. In the facts of the present case, even though the residential quarter was given by appellant to the employee of the contractor but the fact remains the quarter is a residential dwelling and it is exclusively for use as residence. Therefore, in view of the clause ( m ) of Section 66 D this service is in negative list and the same is not taxable.
As per Senior Accounts Officer, M.P.Power Generating Co. Pvt. Ltd. [2017 (4) TMI 952 - CESTAT NEW DELHI] the renting of quarters to the employee of contractor is not liable to service tax. Moreover, the appellant is a government corporation and there cannot be any malafide intention to evade service tax. Therefore, the extended period is not invokable in the fact of the present case. Hence, the demand is also not sustainable on the ground of time bar. Appeal allowed.
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2024 (11) TMI 1137
Services provided by cooperative housing society to its members - Demanding service tax under the category of construction of residential complex service for the period 2011 (October, 2010 to March, 2011) to 2013-2014 along with proposal for interest and penalty - Scope of doctrine of mutuality between the association and its members - as argued since between the society and members no different person are involved, therefore, even though the construction of residential complex has been carried out but the same do not fall under the definition of taxable service of construction of complex. Therefore, the activity between the society and its members is correctly classified under Club or Association Service.
HELD THAT:- We find that in the facts of the present case the period involved is 01.10.2010 to 31.03.2014, therefore, both the periods i.e. prior to negative list regime and post negative list regime is involved. We find that the appellant vehemently argued that the relationship between the appellant and its members to whom the residential flats have been allotted are of association and its members. Therefore, there is no service as the service provider and service recipient are not existing. As per the facts of the present case we find that there is no dispute that the appellant is a co-operative housing society constituted by its members for the objective of construction of residential complex exclusively for the members of the society.
Therefore, it is not a case that of the independent builder has constructed the residential complex and sold to the unrelated buyers. Since, the concept of doctrine of mutuality is involved in the present case between the appellant and its members, it cannot be said that the society has provided any service to its members. Between the association and its members in such service no service provider and service recipient are involved. In this arrangement of society and its members, we are of the view that at most the activities are covered under club or association service.
The principal of doctrine of mutuality has been considered in various judgments and finally the larger bench of State of West Bengal vs. Calcutta Club [2019 (10) TMI 160 - SUPREME COURT] it was decided that there is a doctrine of mutuality between the association and its members, therefore, no service exist. Accordingly, the same is not taxable. The Hon’ble Apex Court has considered both the period i.e. prior to 01.07.2012 and thereafter and held that even in both the period , the amount received by the association from its members shall not be liable to service tax.
Thus, we are of the view that in a case the appellant being a society consisting of members provided the residential complex to its members does not amount to service in the light of settled legal position in Calcutta Club (Supra). Therefore, the demand is not sustainable.
Whether demand is time barred? - In this regard we find that the demand is for the period October, 2010 to March, 2014 and the show cause notice was issued on 21.04.2016 i.e. beyond the normal period. We find that this issue being very contentious and decided by various high courts and finally the issue came to be settled in the case of Calcutta Club Ltd by the Hon’ble Apex Court. Therefore, the issue being involved interpretation of law, no malafide can be attributed to the appellant. Therefore, there is no suppression of fact or wilful mis-statement. Accordingly, the demand is not sustainable on the ground of time bar also.
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2024 (11) TMI 1136
Short paid the Service Tax - appellant had suppressed the taxable value in their ST-3 returns filed - Demand of service tax along with interest, and penalty - Separate penalty has been imposed on the Directors as well - gross taxable value declared is far less than the income receipt mentioned in 26AS as well as Profit& Loss Account - Appellant are engaged in providing taxable services under the category of ‘commercial or industrial construction service’ as defined under Section 65(25b) of the Finance Act, 1994.
Eligibility for the abatement of 33% from the taxable value, as provided under Notification 01/2006 dated 01.03.2006 - services of construction and fabrication to their clients along with supply of materials - HELD THAT:- We observe that the Appellant has supplied consumables, gas, etc., for the purpose of fabrication and construction service rendered by them. As per Notification No. 01/2006 dated 01.03.2006, if the construction service is undertaken along with supply of materials, the Appellant would be eligible for the benefit of 33% abatement in the taxable value. We observe that this exemption is available in the notification itself.
Since the evidence submitted by the appellant clearly indicate rendering of the construction service along with consumables and materials such as Gas, grinding wheels, Welding Electrodes etc., we hold that the Appellant is eligible for abatement of 33% as provided under Notification No. 01/2006-S.T. dated 01.03.2006.
Confirmation of the demand of service tax by invoking the extended period of limitation - We observe that the Appellant had been filing their Returns and paying Service Tax regularly. They have registered with Service Tax Department since 2006, but till the date of audit conducted in 2011, the Department had not raised any objection regarding any short payment of Service Tax by the Appellant. We observe that the if the demand has been confirmed on the basis of the data submitted by the appellant, i.e., from their balance sheet, Profit & Loss Account and Form 26AS, then extended period of limitation is not invokable.
Thus, we hold that the demand cannot be raised in this case by invoking the extended period of limitation. Thus, we hold that the demand confirmed in the impugned order by invoking the extended period of limitation is not sustainable.
As the total tax payable for the normal period (excluding the extended period of limitation), after allowing the 33% abatement as provided under notification 01/2006 dated 01.03.2016, comes to Rs. 22,82,336/-. From the ST-3 returns filed for the half yearly period October 2011 to March 2012, we observe that the Appellant has paid service tax amounting to Rs. 33,92,433/- , for this period. As the appellant has paid more service tax than the service tax payable by them for normal period of limitation, i.e., the half yearly period October 2011 to March 2012, after allowing the abatement, we hold that no additional service tax is payable by the appellant for the normal period of limitation, i.e., for the period October 2011 to March 2012. Accordingly, we hold that the demand confirmed in the impugned order for the normal period of limitation is also not sustainable and hence we set aside the same.
Since the demand itself is not sustainable, the question of demanding interest and imposing penalties on the Appellant as well the Directors does not arise.
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2024 (11) TMI 1135
Denial of Cenvat credit of service tax paid on renting of immovable property service in view of amended definition of input services as provided under Rule 2(l) of Cenvat Credit Rules, 2004 w.e.f. 01.03.2011 - claim denied by the lower authority on the ground that renting of immovable property service falls under the category of setting up of the premises of the output service provider which has been removed from the inclusion clause of the definition of input service.
Whether as per the amendment is the service related to setting up and activities relating to business were removed from the inclusion clause of the definition of input service - HELD THAT:- We find that only services which are covered under inclusion clause of the definition are not alone eligible for cenvat credit but these services are in addition to all such services which are used in or in relation to providing the output service.
In the present case the service of renting of immovable property service is directly used for providing output service of the appellant, therefore, the same is clearly covered under the main clause of the definition of input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004. We find that even subsequently w.e.f 01.04.2011, certain services were excluded from the purview of definition of input service however, the service namely, renting of immovable property service is not covered under the exclusion clause of the definition, therefore, even from 01.04.2011 also the renting of immovable property service continued to be admissible input service for the purpose of availing the cenvat credit. This issue is no longer res-integra as interpreting the removal of setting up in the inclusion clause, the cenvat credit was allowed in NAVIN FLOURINE INTERNATIONAL [2024 (10) TMI 1396 - CESTAT AHMEDABAD] as regard the use of service we are of the view that there is no dispute that those services were used in or in relation to the manufacture of the final product. As regard the contention of the revenue that “setting up of factory” has been removed from the inclusion clause, in our view the removal of from “setting up of factory” will not make any difference because the inclusive portion is not additional service but it is only clarificatory out of all the services covered in main clause - wherein held as on perusal of the exclusion clause of the definition we find that none of the services which are subject matter in the present appeal is falling in the exclusion clause. Therefore, we have no hesitation to hold that all the services are admissible input service and Cenvat credit is admissible.
Thus, the demand of cenvat credit in the present case is not sustainable. Hence the impugned order is set aside and appeal is allowed.
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2024 (11) TMI 1134
Service Tax on the ‘Commission’ received from services provided to foreign clients - Assessee engaged in providing taxable services, including services under the category of ‘business auxiliary service’ to their clients located in the United Kingdom (U.K.) - Appellant rendered the service of collecting necessary information based on the questionnaire sent by M/s. J.S. Humidifiers PLC, U.K. and supplying back such information directly to the foreign party in the U.K. - HELD THAT:- In the Circular No. 111/05/2009-S.T. dated 24.02.2009, it has been clarified that for the services under category III [rule 3(i)(iii)], the deciding factor is the location of the service receiver and not the place of performance.
We observe that the said Circular has interpreted the phrase "used outside India" to mean the benefit of the services accrues outside India. ‘Business auxiliary services’ falls under Rule 3(i)(iii) of the Export Service Rules. Thus, in this case we observe that the phrase "used outside India" has to be interpreted to mean that the benefit of the services accrues outside India.
In the present case, we observe that the appellant has collected the information and provided the same to the foreign principal, who, after analyzing the information, negotiated the price, delivery schedules, technical evaluation, etc., with the customers and delivered the goods directly to them.
We observe that the Appellant had no role in the purchase of the goods by the Indian customer. The information gathered by the appellant and provided to the principal viz. M/s. J.S. Humidifiers PLC, U.K., has been utilized by the principal located in a foreign country and thus the benefit of the information gathered by the them accrues only to the foreign principal. Accordingly, we hold that in terms of Circular No. 111/05/2009-S.T. dated 24.02.2009, the services rendered by the appellant would be appropriately classifiable as ‘export of service’.
Accordingly, we hold that the services rendered by the Appellant in the instant case are exempted from Service Tax, being export of services, and thus the demand of Service Tax confirmed vide the impugned order is not sustainable. The same is therefore set aside.
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2024 (11) TMI 1133
Service Tax demand - Demand confirmed on the basis of the figures which are taken from the financial statement - assessee has claimed that they have paid before issue of the Notice - HELD THAT:- Assessee has claimed that they have paid before issue of the Notice and to this effect, they have submitted evidence in respect of the payment made. As perused the said documents and found that this amount has been paid by the assessee before issuance of the Show Cause Notice. Annexures to the Show Cause Notice confirm this payment by the assessee before issue of the Show Cause Notice.
We find that the ld. adjudicating authority has not taken cognizance of the same and not appropriated the same in the impugned order. Since the amount has already been paid along with interest before issue of the Notice, the same may be appropriated against the demand confirmed. Also, no penalty imposable on this amount confirmed, as this amount has been paid by the assessee before issuance of the Show Cause Notice.
Assessee has imported services on which Service Tax has been demanded and confirmed on reverse charge basis - We observe that this issue has been raised by the audit during the course of audit conducted on the assessee by the Audit Branch of the Service Tax Commissionerate. A perusal of the Audit Report raised by the audit, reveals that the audit team has perused the foreign remittances made by the appellant during the Financial Years 2008-09, 2009-10, 2010-11, 2011-12 and 2012-13 and after perusal, has arrived at a conclusion that the Service Tax liability in respect of the Financial Years 2008-09, 2009-10, 2010-11 and 2011-12 are not liable to be taxed at the hands of the assessee.
Audit team has raised the Service Tax demand on these foreign remittances only in respect of the Financial Year 2012-13 - We observe that the Show Cause Notice was issued to the assessee for the Financial Years 2008-09 to 2012-13, ignoring the findings of the audit team. In view of the findings of the audit team as well as the submission made by the assessee before us, we find that the demand of Service Tax for the period from 2008-09 to 2011-12 is not sustainable on merits. We also observe that the demand has been confirmed on the basis of the figures which are taken from the financial statement of Asian Hotels Ltd and not from the assessee. Also, we observe that the assessee has not suppressed any information from the department. Accordingly, we hold that the demand for the Financial Years 2008-09, 2009-10, 2010-11 and 2011-12 are barred by limitation.
Demand of Service Tax for the Financial Years 2009-10, 2010-11 and 2011 -12 - As we find that the assessee has contended that all the figures were taken from the financial statement which were related to the taxable services on which tax is not payable on the basis of mercantile system of taxation; the RCM is applicable on the payment basis. We observe that this claim of the assessee needs to be verified by the adjudicating authority as there is no finding on this aspect by the adjudicating authority in the impugned order. Accordingly, we remand this issue back to the adjudicating authority for the purpose of ascertaining the correctness of the claim made by the assessee in this regard and for passing an appropriate order in respect of the demand.
Reversal of irregularly availed credit - As we observe that the assessee has already reversed the Service Tax credit amounting to Rs.17,00,404/- even before issuance of the Show Cause Notice, along with interest. The assessee submitted evidence with respect to this payment. we find that the ld. adjudicating authority has not taken cognizance of the same and not appropriated the same in the impugned order. Since the amount of Rs.17,00,404/- has already been paid along with interest before issue of the Notice, which is evident from the Annexure to the Show Cause Notice. Accordingly, we observe that the said payment may be appropriated against the demand confirmed. Also, no penalty imposable on this amount confirmed, as this amount has been paid by the assessee before issuance of the Show Cause Notice.
Balance irregular credit availed amount - The assessee have submitted that this is related to Service Tax credit availed in respect of transportation of their employees after office hours and hence it falls within the ambit of 'input service', which they are entitled to avail. The assessee submitted the invoices raised by the transporter and submitted that it is categorically mentioned in the invoices that the service is related to transportation of some of their employees after office hours, which is related to their business activity of running the hotel.
On a perusal of the documents submitted by the assessee, we find that the assessee have provided vehicles to the employees for dropping them after office work. Thus, the transportation service was used in connection with the rendering of the taxable services by the assessee. Accordingly, we hold that this service is eligible as an ‘input service’ to the assessee and the assessee are eligible to avail CENVAT Credit in respect of these transportation services availed by them. Accordingly, the demand of irregular credit is not sustainable and hence we set aside the same.
We pass the following order in respect of the appeal filed by the assessee:
(i) In respect of the demand of Rs.50,19,379/-, the demands pertaining to the Financial Years 2008-09, 2009-10, 2010-11 and 2011-12 are set aside, on the ground of limitation. Regarding the demand of Rs.11,57,196/- out of the above demand pertaining to the Financial Year 2012-13, the issue is remanded back to the adjudicating authority for verification of the claim made by the assessee as discussed.
(ii) Regarding the irregularly availed credit of Rs.18,17,206/-, we hold that the assessee is eligible for the credit of Rs.1,16,802/- pertaining to the transportation of their employees. As the remaining amount of Rs.17,00,404/-, along with interest amounting to Rs.6,16,725/-, was paid before issue of the Show Cause Notice, we appropriate this amount. No penalty is imposable on the appellant on this amount as this was paid before issue of the Show Cause Notice.
Appeal filed by the Revenue, since the amount involved in the said appeal is Rs.59,94,305/- which is below the threshold limit prescribed for filing appeal before the CESTAT as per the revised National Litigation Policy Circular for monetary limits dated 06.08.2024, the same is dismissed as withdrawn as per the National Litigation Policy.
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2024 (11) TMI 1132
Classification under the category of 'Works Contract Service' or ‘commercial or industrial construction service’ - appellant has rendered the service of construction of a commercial complex at Dibrugarh, Assam under the 10% pool fund provided by the Ministry of Urban Development, Govt. of India, out of the allocated budgetary support provided for North East region including Sikkim
HELD THAT:- Appellant had rendered the said services along with material. The service of construction of complex along with material is appropriately classifiable under the category of ‘works contract service’ as held by the Hon'ble Apex Court in the case of Commissioner of Central Excise and Customs, Kerala v. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT]
As relying on case of M/s.National Building Construction Corporation Ltd. [2022 (8) TMI 471 - CESTAT KOLKATA] we hold that the services rendered by the Appellant in the instant case are appropriately classifiable as ‘works contract service’. However, we observe that there is no demand raised against the appellant in the notice under the category of ‘works contract service’ and therefore, we hold that the demand confirmed against the appellant under the category of ‘commercial or industrial construction service’ is not sustainable. Accordingly, we set aside the same. Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise.
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2024 (11) TMI 1131
Demand under the category of port service and under the category of GTA Service under proviso to Section 73(2) - Interest has been demanded on the amount of service tax and CENVAT Credit confirmed - HELD THAT:- As we observe that this demand pertains to services rendered to four clients. We observe that out of the demand of Rs.28,24,469/- the appellant agreed to pay service tax on the value of Rs.4,33,000/- received from M/s. Essel Mining & Industries Ltd., under the category of 'Port Services'. Accordingly, we confirm this demand along with interest, under the category of 'Port Services.
Services rendered To Guru Shipping & Clearing and M/s. Lee & Muirhead Pvt. Ltd. We observe that the amended definition of 'Port Service' which came into effect from 01.07.2010 is not applicable in this case. Accordingly, we hold that the services rendered by the appellant to the above said clients for handling export cargo in the docks area is appropriately classifiable as 'cargo handling service' and the same are excluded from payment of service tax as per the definition of 'cargo handling service', as defined under Section 65(23) of the Finance Act, 1994. Thus, we hold that the demand confirmed in the impugned order under the category of 'Port Services' is not sustainable.
Service rendered by the appellant to M/s. Tata Chemicals Ltd. We observe that the actual service rendered by the appellant is transportation of goods. M/s. Tata Chemicals Ltd., being a registered company, paid the freight and therefore, in terms of Sub-clause (V) of Rule-2(1)(d) of Service Tax Rules, 1994, we observe that the service recipient is liable to pay service tax on the GTA service under reverse charge basis. Accordingly, we hold that the demand of service tax confirmed in the impugned order under the category of 'port services' is not sustainable and hence the same is set aside.
Denial of CENVAT Credit - appellant is having other units but no centralized registration has been obtained and accordingly CENVAT Credit availed on the basis of such invoices was disallowed - We observe that when the receipt and utilisation is not in dispute, CENVAT Credit cannot be denied merely on procedural grounds. We hold that the CENVAT Credit availed by the appellant cannot be denied.
Levy of interest and penalties - Since the demand of service tax and denial of CENVAT Credit confirmed in the impugned order is held as not sustainable, the question of demanding interest and imposing penalty on the appellant does not arise.
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2024 (11) TMI 1130
Condonation of delay of 268 days in filing the Civil Appeals - liability to pay NCCD on Dumper chassis as an intermediate product - It was held by CESTAT that 'the issue as to whether the exemption under notification 67/95 is available to NCCD is to be answered in the affirmative and in favour of the assessee.' - HELD THAT:- There are no good reason to interfere with the common impugned orders in M/S. KOMATSU INDIA PVT. LTD. VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE [2023 (11) TMI 305 - CESTAT CHENNAI] - The Civil Appeals are, accordingly, dismissed on the ground of delay as well as on merits.
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2024 (11) TMI 1129
Availment of inadmissible credit - mala fide intention on the part of the assessee or not - invocation of extended period of limitation under proviso to Section 11A of the Central Excise Act, 1944 - HELD THAT:- Circular dated 2-11-2023 issued by the Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes & Customs states that in exercise of the powers conferred under Section 131BA of the Customs Act, 1962 and in partial modification of earlier instructions issued in F.No.390/Misc./163/2010-JC dated 17.08.2011, the Central Board of Indirect Taxes and Customs has fixed the monetary limit below which appeal shall not be filed in the CESTAT, High Court and the Supreme Court. So far as this Court is concerned, the monetary limit fixed is Rs.2 Crore.
Appeal disposed off.
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2024 (11) TMI 1128
100% EOU - Refund/rebate of service tax paid - place of removal - export of goods as per N/N. 41/2012-ST dated 29.6.2012 - refund claims were rejected on the common ground that the gamma sterilization service was undertaken much before the time of export and hence does not fall under the category of ‘services that have been used beyond the place of removal for the export of the said goods’ mentioned under Explanation (A) (i) of Notification No.42/2012-ST dated 29.06.2012 - HELD THAT:- The amendment has widened the ambit of the term 'specified service'. The appellant has drawn attention to the Tribunal judgment in the case of M/S BHARAT MINES & MINERALS VERSUS COMMISSIONER CENTRAL GOODS & SERVICE TAX, DEHRADUN. [2020 (2) TMI 1007 - CESTAT NEW DELHI] which held that rebate of service tax paid on Chartered Accountant Service is to be allowed since the said service was admittedly used beyond the place of factory and further held that the wordings of the notification make it very clear that the question of the service being rendered pre or post export has no significance.
Swatch Bharat Cess and Krishi Kalyan Cess - HELD THAT:- This issue stands settled by the Hon'ble CESTAT, Kolkata in the case of M/S. MMTC LIMITED VERSUS COMMISSIONER OF CGST & CX, BHUBANESWAR COMMISSIONERATE [2023 (10) TMI 815 - CESTAT KOLKATA] wherein it has been held that the assessee is entitled for refund of Swatch Bharat Cess and Krishi Kalyan Cess in terms of notification No. 41/2012-ST dated 29.06.2012.
Refund paid on courier services - HELD THAT:- The Commissioner (Appeals) had allowed this very issue in the appellant’s own case M/S. KANAM LATEX INDUSTRIES PVT. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, TIRUNELVELI [2024 (1) TMI 1055 - CESTAT CHENNAI]. The Department has accepted the said order-in-appeal and no further appeal has been filed before the Tribunal against the grant of refund of service tax paid on courier services.
It is submitted that the appropriation of an amount of Rs. 1,24,593/- is clearly without authority of law and therefore they are entitled to the refund of the said amount wrongly appropriated. In the facts and circumstances stated, the appropriation of amounts made and covered by the above-mentioned appeals, are set aside.
The impugned order set aside - appeal allowed.
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2024 (11) TMI 1127
Appeal dismissed for non compliance with Section 35F of Central Excise Act - HELD THAT:- There are no justification for adjourning the matter.
The Appeal is dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
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2024 (11) TMI 1126
Dismissal of appeal for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982 - HELD THAT:- There are no justification for adjourning the matter beyond three times which is the maximum number statutorily provided.
The Appeal is dismissed for non prosecution in terms of Rule 20 of CESTAT Procedure Rules, 1982.
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2024 (11) TMI 1125
Recovery of CENVAT Credit with Interest and penalty - duty paying documents - endorsed Bill of entry - valid document for availing cenvat credit as per Rule 9(1) of Cenvat Credit Rules, 2004 or not - HELD THAT:- In appellant’s own case REMIDEX PHARMA PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS, BANGALORE-II [2018 (4) TMI 471 - CESTAT BANGALORE], this tribunal for earlier period observed that 'the impugned order denying the CENVAT credit only on the ground of endorsed Bill of Entry is not sustainable in law.'
The impugned orders are set aside and the appeals are allowed.
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2024 (11) TMI 1124
Time Limitation - Recovery of differential duty with interest and penalty - whether the demand is barred by limitation? - whether the demand is barred by limitation or not - HELD THAT:- It is found that initially the view of the department was that the clearance of samples free from the factory leviable to duty and the value should be determined adopting Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Later, the same was reconsidered and it was clarified that the proper rule for determination of value of free samples cleared from the factory would be Rule 4 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
The Hon’ble High Court of Bombay in the case of INDIAN DRUGS MANUFACTURER'S ASSOCN. VERSUS UNION OF INDIA [2006 (9) TMI 94 - BOMBAY HIGH COURT] case held that the value of physician samples cleared free be determined by adopting Rule 4 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
There was no suppression or misdeclaration on the part of the appellant with intent to evade payment of duty. Consequently, the demand with interest be limited to the normal period of limitation. Under these circumstances, penalty is also not imposable.
The impugned order is modified to the extent of setting aside the demand for the extended period of limitation and the demand for normal period is upheld with interest. As issue pertains to interpretation of law, no penalty is imposable. Appeal is partly allowed.
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2024 (11) TMI 1123
Challenge to insertion of the words ‘socialist’ and ‘secular’ in the Preamble to the Constitution of India by the Constitution (Forty-second Amendment) Act in 1976 - retrospectivity of the insertion in 1976, resulting in falsity as the Constitution was adopted on the 26th day of November 1949 - whether word ‘secular’ was deliberately eschewed by the Constituent Assembly, and the word ‘socialist’ fetters and restricts the economic policy choice vesting in the elected government?
HELD THAT:- The fact that the writ petitions were filed in 2020, forty-four years after the words ‘socialist’ and ‘secular’ became integral to the Preamble, makes the prayers particularly questionable. This stems from the fact that these terms have achieved widespread acceptance, with their meanings understood by “We, the people of India” without any semblance of doubt. The additions to the Preamble have not restricted or impeded legislations or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution. Therefore, there are no legitimate cause or justification for challenging this constitutional amendment after nearly 44 years. The circumstances do not warrant this Court’s exercise of discretion to undertake an exhaustive examination, as the constitutional position remains unambiguous, negating the need for a detailed academic pronouncement.
There are no justification or need to issue notice in the present writ petitions, and the same are accordingly dismissed.
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2024 (11) TMI 1122
Validity of assessment order passed - breach of principles of natural justice - delay filling SLP - Petitioner states that an assessment order has been passed even before the time granted for fling a reply expired and without considering the reply which was already fled - As decided by HC [2021 (9) TMI 1566 - BOMBAY HIGH COURT] Assessment order has been passed even before time to file reply had expired and without considering the records that reply has in fact been fled. This has resulted in petitioner having to rush praying to this Court to interfere in this wrongful action on the part of respondent. If the Assessing Officer had checked his/her records, he/she would not have passed assessment order hastily without waiting for time granted to file reply expired and without checking whether any reply has been fled - fit case to impose cost
HELD THAT:- We have considered the submissions advanced at the Bar in light of the application filed seeking condonation of delay which we have also perused. The explanation offered by the petitioners is neither satisfactory nor sufficient in law so as to condone the delay of 444 days in filing the special leave petition.
In the circumstances, the application seeking condonation of delay is dismissed. Consequently, the special leave petition stands dismissed.
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2024 (11) TMI 1121
Liability to pay interest on the income calculated under the MAT provisions [Section 115J] - eligibility of benefit of Direct Tax Vivad Se Vishwas Scheme 2024 - Scheme provides that for the purpose of seeking benefit under the said scheme the appeal should be pending as on 22nd July 2024.
HELD THAT:- Clause 10 of Circular no. 12 of 2024 makes it clear that as per Section 91(3) of the scheme the tax payer is required to withdraw appeals and furnish proof thereof along with intimation of payment under Section 92(2) of the Scheme.
In view of the aforesaid, both the appeals are disposed of as withdrawn with liberty to the appellants to approach the authority for the purpose of availing the benefits under the Scheme 2024. In the event of any further difficulty, we grant liberty to the parties to come back before us by way of an appropriate petition.
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2024 (11) TMI 1120
Assessment u/s 153C - addition on account of unexplained cash credit u/s 68 - HELD THAT:- Since seized documents in the instant case are not of incriminating nature, the AO is legally barred from framing assessment u/s 153C as confirmed by the Hon'ble Supreme Court judgment in the case of Abhishar Buildwell P. Ltd. [2023 (5) TMI 587 - SUPREME COURT].
Similar issue came up for consideration before this Court in [2024 (8) TMI 1488 - MAHDYA PRADESH HIGH COURT]. This appeal also stands dismissed in the light of this order and the decision shall apply mutatis mutandis to the facts and circumstances of the present case.
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2024 (11) TMI 1119
Additional income relating to excess stock surrendered by the assessee - shall form part of its business income or not? - CIT(A) has also placed reliance on various case laws and accordingly rendered his decision in favour of the assessee that income surrendered by it was generated from its business activities only - HELD THAT:- The assessee herein is a Partnership Firm. There is no dispute with regard to the fact that the assessee does not have any other income other than the business income. Hence the assessee could have accumulated the stock out its business income only, which was not disclosed earlier.
In the cases relied upon by CIT(A), the co-ordinate benches of Tribunal and the Hon’ble High Courts as relied upon have held that the discrepancy in the stock found during the course of search/survey operations should be assessed as business income only. Since the CIT(A) has rendered his decision on the basis of various case laws and since the revenue did not contradict them, we affirm the order passed by Ld CIT(A) on this issue.
Adhoc disallowance of expenses incurred shop expenses, office expenses and packing expenses - HELD THAT:- AO has not given any basis for making disallowance @ 20%. Before CIT(A), the assessee contended that making of adhoc disallowance is bad in law. Assessee did not disprove the observations of the AO that many expenses are supported by self made vouchers. However, we notice that the AO has examined the expenses on test check basis only and accordingly concluded that all the expenses are supported by self made vouchers only. The presumption so arrived at by the AO is debatable one. Under these set of facts, disallowance of part of expenditure so claimed is required in order to take care of leakage of revenue, if any, in making the claim. We are of the view that the disallowance made @ 20% is on the higher side. Accordingly, we modify the order passed by Ld CIT(A) on this issue and direct the AO to restrict the disallowance to 10% of shop, office and packing expenses. Decided partly in favour of assessee.
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