Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
October 22, 2015
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Coercively recovered u/s 245 - whether set off should be ordered - If the competent authority, actually, decides to invoke Section 245, then, notice should be issued to the assessee and, after giving an opportunity of being heard to the assessee, a decision shall be taken in accordance with law. - HC
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Tribunal is not authorized to take back the benefit granted to the assessee by the Assessing Officer. The Tribunal has no power to enhance the assessment. - HC
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Income received or deemed to be received in India - liaison office is established only for the purpose of carrying on business of purchasing goods for the purpose of export and all that activity also falls within the meaning of the words "collecting information" for the enterprise - liaison office would not qualify to be a permanent establishment in terms of Article 5 of the DTAA - HC
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Reopening of assessment - One fails to comprehend as to how the cash withdrawals from accounts maintained by the assessee can be said to amount to escapement of income within the meaning of section 147 - HC
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Addition u/s 68 - The addition cannot be sustained only for the simple reason that these shareholder companies have not responded in first round of commission - in second round of commission the parties have come forward and submitted their requisite reply in order to justify the financial credibilities - No addition - AT
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Entitlement to exemption u/s 54 - If the completion of construction had been delayed on account of the delay in the Airports Authority of India in giving clearance and the Town Planning Authority giving approval to the building plan, the benefit of section 54 cannot be denied to the assessee - HC
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TPA - Benchmarking international transactions with its associate enterprises on aggregate basis, TNMM method should be applied and since the margins declared by the assessee are higher than the margins declared by the comparables picked up by the assessee in its TP study report - AT
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CBDT notifies New Rule 10CA for Computation of arm's length price in certain cases with detailed Illustrations - Notification
Customs
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Waiver of pre deposit - Merely because the petitioner is more vigilant about its right is no reason to non-suit the petitioner on the ground that other similarly situated assessees have not thought it fit to move applications for modification of the order of pre-deposit. - HC
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Mis-declaration of goods – in view of the position in law that was prevailing at that time, it was a bona fide declaration and cannot be treated as misdeclaration. - Extended period of limitation could not have been availed by the Department - SC
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Rejection of refund claim – admittedly price has been administered by APM regime and selling price has been fixed by Government - bar of unjust enrichment is not applicable to facts of these appeals - refund allowed - AT
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Duty chargeable on quantity of goods received or invoice value – even if appellant would have received lesser quantity of goods in shore tanks, invoice value charged and paid by appellant would be correct value unless there is clear evidence that they have paid less amount or they have paid value/price for quantity received in shore tanks - AT
Corporate Law
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Winding up Petition of unpaid dues of salary - Employee can locus to file Company Petition in respect of unpaid wages and emoluments, same as creditor of Company and opinion of High Court in case of Pawan Kumar Khullar overturned - HC
Service Tax
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Availment of CENVAT Credit – input services - service tax paid on the Activity of providing/selling SIM cards/recharge coupons was availed and utilized for payment of service tax on commission income under Business Auxiliary Service - Impugned CENVAT credit is inadmissible - AT
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Club membership service - co-operative society - service tax liability on the various fees collected by them from the members in respect of the functioning of the Society - activit of accepting deposits and giving loans to members - demand set aside since HC has already ruled that the levy of service tax is unconstitutional - AT
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Appellant could have entertained a bona-fide belief that they are acting as a pure agent while transmitting the amount of salaries, wages and allowances Shipping Corporation of India to the staff supplied by them - Extended period of limitation cannot be invoked - AT
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Rejection under VCES, 2013 – Statutory provision of Appeal under VCES - Powers of Commissioner (Appeals) to entertain the appeal upheld - AT
Central Excise
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Writ petition - Valuation - related person - revenue neutral exercise since the recipient is able to avail Cenvat Credit - in the absence of any reasons having been assigned for not accepting the principal contention raised by the petitioner, it is evident that the impugned order suffers from the vice of breach of principles of natural justice. - HC
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Valuation - Related person - mutuality of interest - merely having shareholding does not make them related persons. - loans has been repaid by M/s. SIPL in future. - If at all, we presume that there is a mutuality of interest in that case also when the goods are sold by M/s. SIPL to M/s. CF on the price at which the goods have been sold to independent buyers, in that case the sale price by M/s. CF cannot be held as assessable value for M/s. SIPL - AT
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Area based exemption - Classification of goods - products namely Gulabari, Keora Water and Shilajit Capsules - Department cannot take two different views in respect of same product manufactured by the same person in two different units. - present view in respect of Jammu unit is intended only to deny the benefit under Notification No. 56/2002-CE without much legal basis. - AT
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Classification of Burnt Lime - Raw lime stone is burnt along with coal in a vertical shaft kiln. - , in view of the Board s Circular as well as HSN Explanatory Note, the product manufactured by the respondent has to be classified under CTH 25.05 only. - AT
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CENVAT Credit - duty paying documents in the name of sister concern - Bill of Entry was in the name of M/s. J.J. Polyplast, Daman who had surrendered the registration and they have not issued the invoices - credit allowed - AT
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Denial of refund claim - unjust enrichment - There is no provision in the Central Excise law that the state government authorities would be are outside of the principles of unjust enrichment - AT
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Refund claim of amount paid as interest - No doubt there is no provision in the Section 11B of Central Excise Act 1944 specifically providing for refund of interest paid by an assessee - However, refund of interest amount cannot be denied - AT
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Transfer of credit due to change in ownership - As per rule 10(3) of the Cenvat Credit Rules 2004 there is no requirement to take prior permission to take Cenvat Credit from the concerned authorities - appellant has taken the credit and informed to the department they filed the ER return regularly - conditions are satisfied - AT
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Export of goods - there is no condition that in respect of the goods exported, the export proceeds must be received within any stipulated period - the condition regarding receipt of export proceeds cannot be imposed to demand duty foregone in respect of the goods cleared for export under bond/LUT. - AT
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Valuation - As a matter of fact, the said goods could not be sold without the said inspection by RITES and therefore cost of inspection is clearly includible in the assessable value under Section 4 of the Central Excise Act, 1944. - AT
Case Laws:
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Income Tax
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2015 (10) TMI 1770
Refund of entire amount coercively recovered along with 15% interest per annum as per sections 240 and 244(1) seeked - Held that:- In the circumstances of the case, we are inclined to accept the request, namely, that a decision will be taken by the authority regarding the refund in accordance with law, which would include the right to consider whether, under Section 245 of the Act, a case is made out for adjustment of the refund against the demand for the year 2015-2016. We have adverted to the various principles and situations, in which Section 245 can operate. It may not be exhaustive. The officer is duty bound not to invoke Section 245 without application of mind. It is, undoubtedly, true that the amount due for the Assessment Year 2015-2016 is one, which is remaining payable as it still remains unsatisfied. As far as the right to refund is concerned, it is also not questioned by the appellants. The only question is, whether, in the circumstances obtaining as a whole, set off should be ordered. We have given sufficient indications, which should guide the authority. It is for the authority concerned to look into all these aspects and, firstly, decide whether it should invoke the power under Section 245 of the Act. If it is of the view that the power should be invoked; then alone, in view of the requirement of giving prior intimation, which we have held entails compliance with natural justice, appellants must issue a notice indicating the proposal to invoke Section 245. A decision should be taken within a period of 10 days from today and, if the competent authority, actually, decides to invoke Section 245, then, notice should be issued to the writ petitioner and, after giving an opportunity of being heard to the assessee, a decision shall be taken in accordance with law. If the authority finds, in the facts of this case, that no case is made out for invoking Section 245 on the basis of the assessment completed in 2015-2016 within a period of 10 days from today, then, the amount due by way of refund, along with due interest, shall be paid to the writ petitioner at the earliest. If, on the other hand, it decides to invoke Section 245, then the proceedings must be completed within a period of two weeks from the date of affording an opportunity to the writ petitioner.
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2015 (10) TMI 1769
Denial of expenditure incurred in computation of income of the appellant-assessee - Tribunal denied the expenditure solely on the ground that the business activities are closed in view of the transfer of cement factory, plant and machinery - Held that:- As per the agreement, the assessee has to fulfill other obligations, for which they have to incur expenditure and these are the revenue expenditure. Hence, the assessee is entitled for deduction in respect of expenditure incurred in relation to transfer of plant and machinery to M/s. MCL. As stated earlier, the Assessing Officer has accepted the expenditure for the assessment year 2004-05 and 2006-07. - Decided in favour of assessee. Disallowance of deduction on royalty expenditure - Held that:- The assessee has not produced any documents to show that they have paid royalty during the assessment year 2002-03. As per the agreement of sale entered into between the assessee and M/s. MCL, by executing the irrevocable power of attorney, mining lease was allowed to operate. In fact, the MCL themselves have admitted that the first payment of royalty for mining was made on 2-9-2000 itself. In the absence of any material with regard to expenditure on royalty, all the authorities concurrently held that the assessee has not incurred any expenditure in respect of royalty. Hence, the assessee is not entitled for the deduction towards royalty. - Decided in favour of the Revenue. Denial of setting off of unabsorbed depreciation against the income - Held that:- The Hon'ble Supreme Court in a judgment reported in (CIT v. Jaipuria Chaina Clay Mines (P) Limited [1965 (11) TMI 32 - SUPREME Court] held that unabsorbed depreciation can be carried forward and would be set-off even against the profit under the head other than the "business income". Hence, we are of the opinion that the assessee is entitled to carry forward the unabsorbed depreciation and set-off. - Decided in favour of the assessee. Expenditure on maintenance of corporate office - whether is not deductible from the income of written back - Held that:- The Revenue has not challenged the deduction allowed by the Assessing Officer as well as the First Appellate Authority. However, the Tribunal disallowed the said allowance made by the authorities below which is contrary to law. The Hon'ble Supreme Court in a judgment reported in Mcorp Global Pvt. Limited [2009 (2) TMI 5 - SUPREME COURT] relying upon Hukumchand Mills v. CIT [1966 (9) TMI 38 - SUPREME Court] held that the Tribunal is not authorized to take back the benefit granted to the assessee by the Assessing Officer. The Tribunal has no power to enhance the assessment. In view of the judgment of the Supreme Court, the Tribunal has no power to enhance the assessment, though the said deduction is challenged before the Tribunal. Hence, the assessee is entitled deduction towards the maintenance of the corporate office. - Decided in favour of the assessee.
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2015 (10) TMI 1768
Income received or deemed to be received in India - accrual of income - Whether the Indian liaison office involves a permanent arrangement for the application under Article 5.1 of the DTAA? - Whether any portion of the income attributable to the liaison office on account of the activity of vendors co-operation of global production management and planning and equitable quality assurance strategy, quality development and is liable to tax? - Held that:- In the instant case, the liaison office of the petitioner identifies a competent manufacturer, negotiates a competitive price, helps in choosing the material to be used, ensures compliance with the quality of the material, acts as go-between, between the petitioner and the seller or the manufacturer, seller of the goods and even gets the material tested to ensure quality in addition to ensuring compliance with its policies and the relevant laws of India by the suppliers. Therefore, it is of the view that the aforesaid activities carried on by the liaison office, cannot be said to be an activity solely for the purpose of purchasing the goods or for collecting information for the enterprise. We find it difficult to accept this reasoning. If the petitioner has to purchase goods for the purpose of export, an obligation is cast on the petitioner to see that the goods, which are purchased in India for export outside India is acceptable to the customer outside India. To carry on that business effectively, the aforesaid steps are to be taken by the seller i.e., the petitioner. Otherwise, the goods, which are purchased in India may not find a customer outside India and therefore, the authority was not justified in recording a finding that those acts amounts to involvement in all the activities connected with the business except the actual sale of the products outside the country. In our considered information, all those acts are necessary to be performed by the petitioner – assessee before export of goods. Consequently, the reasoning of the authority that for the same reasons, the liaison office in question would qualify to be a permanent establishment in terms of Article 5 of the DTAA is also erroneous. That liaison office is established only for the purpose of carrying on business of purchasing goods for the purpose of export and all that activity also falls within the meaning of the words "collecting information" for the enterprise. - Decided in favour of assessee.
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2015 (10) TMI 1767
Reopening of assessment - notice under section 148 issued beyond a period of four years from the end of the relevant assessment year - petitioner has withdrawn ₹ 2,54,00,000/- from the bank accounts maintained by it in cash and has not explained the utilisation thereof - Held that:- The sole basis for reopening the assessment is that the petitioner assessee has withdrawn an amount of ₹ 2,54,00,000/- in cash and has not explained the utilisation. Thus, cash withdrawals from bank accounts maintained by the assessee have been termed as escapement of income by the Assessing Officer. One fails to comprehend as to how the cash withdrawals from accounts maintained by the assessee can be said to amount to escapement of income within the meaning of section 147 of the Act, as stated by the Assessing Officer, when it is not the case of the Assessing Officer that the amount deposited by the assessee in its bank accounts is undisclosed income. - Decided in favour of assessee.
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2015 (10) TMI 1766
Revision u/s 263 - benefit under section 35D disallowed - ITAT setting aside the order of CIT passed u/s 263 cancelling the order passed u/s 143(3) - Held that:- Assessee had claimed the benefit thereof in the assessment year 2007-08 and such claim had been allowed and was not disturbed subsequently. It is subsequently in the year 2009-10 that the Commissioner of Income Tax has taken the matter in revision under section 35D. As held by this court in the case of Deputy Commissioner of Income Tax v. Gujarat Narmada Valley Fertilizers Company Limited, (2013 (8) TMI 300 - GUJARAT HIGH COURT) when the claim has been granted by the Assessing Officer in respect of previous years, such claim cannot be disallowed subsequently without disturbing the decision in the initial year. Under the circumstances, it cannot be said that the view adopted by the Assessing Officer is not a plausible view. It is by now well settled that if two views are possible and the Assessing Officer has adopted one view, the same would not warrant exercise of the powers under section 263 of the Act. Disallowance under section 14A read with rule 8D(2)(ii) - CIT(A) noted that AO had not made any addition under rule 8D(2)(i) which shows that no expenditure had been considered as directly related to earning exempt income and that the Assessing Officer had disallowed part of the interest expenses under rule 8D(2)(ii) - Held that:- In the facts of the present case, as is apparent from the findings recorded by the Commissioner of Income Tax, the Assessing Officer had invoked the provisions of section 14A of the Act read with rule 8D of the rules. The assessee submitted that mutual fund investment was made out of IPO proceeds. Investment in mutual funds of ₹ 14.78 crores was made out of funds lying idle till deployment in business for short term proceeds of Public Issue. Such mutual fund investments were redeemed as and when required for business operation. Dividend income claimed exempt was of ₹ 64,30,214/- consisting of dividend received from various mutual fund schemes invested as above. No direct expenditure was incurred in relation to receive income of dividend, as these investments were made out of temporary idle IPO proceeds. The Assessing Officer after considering the explanation given by the assessee was not satisfied with regard to the accounts of the assessee in relation to earning income that does not form part of the total income of the assessee company. He, accordingly, computed the expenditure incurred in relation to earning dividend income as per the provisions of section 14A read with rule 8D of the rules and disallowed interest expenditure of ₹ 41,32,115/- under rule 8D(2)(ii) of the rules. Thus, the Assessing Officer after examining the issue and calling for the explanation of the assessee was not satisfied with the explanation of the assessee and computed the interest expenditure in terms of section 14A of the Act read with rule 8D of the rules. The Commissioner of Income Tax is of the opinion that he would have assessed the interest expenditure at a higher figure. Therefore, merely because another view is possible is not sufficient to invoke powers under section 263 of the Act. The view adopted by the Assessing Officer, being a plausible view, it cannot be said that the assessment order is erroneous so as to warrant exercise of powers under section 263 of the Act. - Decided in favour of assessee.
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2015 (10) TMI 1765
Reopening of assessment - notice under Section 143(2) of the Act was also never served on the Assessee - Held that:- no notice under Section 143(2) of the Act was issued to the Assessee after 16th December 2010, the date on which the Assessee informed the AO that the return originally filed should be treated as the return filed pursuant to the notice under Section 148 of the Act. The resultant position is that as far as the present case is concerned the failure by the AO to issue a notice to the Assessee under Section 143(2) of the Act subsequent to 16th December 2010 when the Assessee made a statement before the AO to the effect that the original return filed should be treated as a return pursuant to a notice under Section 148 of the Act, is fatal to the order of re-assessment. - Decided in favour of assessee.
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2015 (10) TMI 1764
Bogus purchase of M.S. Steel - ITAT deleted the addition - Held that:- Tribunal has concurred with the findings recorded by the Commissioner (Appeals), namely, that the assessee had provided copies of bills of purchase and had also given evidence to establish that the steel reached the assessee’s factory at Anjar by way of weigh bridge receipt which showed that the steel had actually reached the assessee’s factory. The purchases made by the assessee were duly supported by various documentary evidences such as inward stamped bills and weigh bridge challans, etc. and that M/s. Dhruv Steel had confirmed sale of the steel to the assessee. It was noticed that the assessee had in fact constructed a huge plant, which, in the absence of purchases of steel could not have been set up. The Tribunal, correctly concurred with the conclusion arrived at by the Commissioner (Appeals) that the Assessing Officer was not justified in holding that there were bogus purchases of M.S. steel in assessment year 2004-05. - Decided in favour of assessee.
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2015 (10) TMI 1763
Addition on undisclosed income - unexplained expenditure - evidence found during the course of search under Section 132 - ITAT deleted the addition - Held that:- Assessing Officer has committed an error in calculation of income of the respondent and the additions have been made on the basis of presumption and surmises and without any evidences on record. In the registers, which were seized bearing No. TKS-1 to TKS-12, some amount has been mentioned, which is received by the respondent assessee. The Assessing Officer has presumed that still further amount must have been paid by the patients, in cash. There is no evidence taken by the Assessing Officer, by examining any of the patients that he has paid any amount, in cash, over and above what is stated in the register. Not a single patient has been examined by the appellant for any of the block years or for the broken period. Moreover, the Assessing Officer has presumed the number of patients also for two assessment years i.e. 1995-96 and 1996-97 as 1000. The Assessing Officer has also presumed the average rate of ₹ 2000/- per case, on the basis of cash memo seized for broken period running from 1st April, 1997 to 21st October, 1997. For this broken period the total receipt comes to ₹ 10,20,600/- and the total number of cases were 541 and, therefore, average comes to ₹ 2000/- per patient. Thus, the rate which was found out by the Assessing Officer in the year, 1997 has also been made applicable in the year 1988-89 and, that too, on the presumed number of patients. This is not permissible in the eyes of law. The total calculation of receipts of the respondent-assessee, which worked out at ₹ 11,48,600/- is absolutely a baseless calculation. - Decided in favour of assessee.
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2015 (10) TMI 1762
Penalty u/s 271(1)(c) - undisclosed income - assessee had offered the additional income for taxation only after it was detected by the department while conducting a survey operation u/s 133A(1) - ITAT set aside penalty - Held that:- r. In the facts of the present case, neither the Assessing Officer nor the Commissioner (Appeals) has recorded any categorical finding as to what is the nature of concealment or the inaccurate particulars furnished by the assessee. As noticed earlier, the revised return filed by the assessee has been accepted by the Assessing Officer as it is. Evidently therefore, it cannot be said that any particulars of income had been concealed by the assessee while filing the said return, nor is there any finding that any inaccurate particulars of income were furnished. The Assessing Officer has invoked the provision of section 271(1)(c) of the Act on the ground that the disclosure made in the return was not voluntary. In this regard it may be noted that section 271(1)(c) of the Act does not include “involuntary disclosure” as one of the grounds for imposing penalty. Under the circumstances, no infirmity can be found in the impugned order passed by the Tribunal in setting aside the order of penalty. - Decided in favour of assessee.
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2015 (10) TMI 1761
Gifts received from family members - Could not be proved to be genuine by the Assessee - whether income related to incriminating documents found during the search u/s 132 could be assessed u/s 153A even though the provisions of Section 153A mandate that the Assessing Officer assess or reassess the Total Income of the Assessee searched u/s 132? - ITAT deleted the addition - Held that:- On issue of jurisdiction itself the issue stands concluded against the revenue by the decision of this Court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT ). In the appeal before us, the revenue has made no grievance with regard to the impugned order of the Tribunal holding that in law the proceedings under Section 153A of the Act are without jurisdiction. This in view of the fact that no assessment were pending, so as to abate nor any incriminating evidence was found. Once it is not disputed by the revenue that the decision of this Court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings under Section 153A of the Act. The occasion to consider the issues raised on merits in the proposed questions becomes academic. No substantial question of law. - Decided against revenue.
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2015 (10) TMI 1760
Validity of assessment made u/s 153A - period of limitation - Whether the assessment framed under section 153A/143(3) is legal, when consequent upon action taken by the department under section 132 against the assessee was carried out and nothing incriminatory was found, and re- visiting the issues, which have been settled earlier, is permissible? - Held that:- The provisions contained in the above second proviso to Section 153B of the Act are applicable to the facts of the present case which clearly provides that the assessment u/s 153A is required to be completed within 21 months from the end of the financial year in which last of the authorization for search u/s 132 of the Act was executed. In the present case, the authorization for search was executed on 21.03.2007, the panchnama was drawn on 22.03.2007 after completion of the search, as such the financial year ends on 31.03.2007 and 21 months period ends on 31.12.2008. Therefore, the assessment was required to be framed u/s 153A of the Act on or before 31.12.2008. However, in the present case, the assessment has been framed on 24.12.2009, therefore the assessment framed was barred by limitation and deserves to be quashed as invalid - Decided in favour of assessee.
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2015 (10) TMI 1759
Depreciation on Wind Mills – WEG - Held that:- Whether the installed Wind Mill was new or old would not affect the claim of depreciation as per the provisions of the law. Further we find that the report of the DDIT, Unit-II Coimbatore is self speaking report wherein the Revenue authorities have made a detailed investigation in respect of the erection of Wind Mill Energy in the State of Tamil Nadu. We have no hesitation to hold that the assessee’s claim for purchasing a Wind Mill, erecting the same and generating electricity are fully substantiated. Therefore, the assessee is entitled to the claim of depreciation as per the provisions of the law. - Decided in favour of assessee. Depreciation on the Wind Mill installed in the State of Karnataka - AO declined the claim as the land on which the Wind Mill has been erected cannot be owned by the assessee as it belongs to/or the land granted to weaker sections by the Government of Karnataka and Since the assessee does not owned the land, assessee cannot be considered as owner of the WEG - Held that:- A perusal of the record shows that the said land has been taken on lease by M/s. Pioneer Windcon Pvt. Ltd., for a period of 30 years. We also find that The Karnataka Renewable Energy Development Ltd., has approved the power project and there is an agreement between the Department of Energy of Government of Karnataka and the assessee for the installation and supply of electricity to the Government. These facts conclusively established the claim of the assessee for depreciation merely because the assessee is not the owner of the land and the land is a leasehold land would not itself disentitled the assessee with the claim of depreciation. The Ld. CIT(A) has rightly allowed the claim of depreciation and therefore we decline to interfere. - Decided in favour of assessee. Addition u/s. 69C - unexplained expenditure - Held that:- except for the admission of one of the Authorised Representative, there is no documentary evidence to suggest that the assessee has incurred cost outside the books of account. Merely on the basis of an unsubstantiated submission cannot lead to the addition u/s. 69C of the Act. The assessee has purchased the land for ₹ 58,500/- and therefore to this extent, the assessee is not entitled for the claim of depreciation. While deleting the addition of ₹ 2,41,500/-, we direct the AO to withdraw the depreciation on the amount of ₹ 58,500/- - Decided partly in favour of assessee. Claim of additional depreciation on the WEG denied - Held that:- The claim of additional depreciation has been correctly denied because the provisions of Sec. 32(1)(iia) has been amended w.e.f. 1l.4.2013 by the Finance Act, 2012. - Decided against assessee
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2015 (10) TMI 1758
Revision u/s 263 - as per CIT(A) AO has allowed benefit of section 44AD/AF erroneously without considering whether conditions thereto are fulfilled, and also not by applying provisions of section 69A of the Act - Held that:- AO, after considering the totality of the facts and circumstances of the case, proceeded to estimate the business income of the assessee @8% of gross receipts and made an addition of ₹ 6,11,230/- which was accepted by the assessee without any further litigation. However, we cannot ignore that the AO in the operative part of the assessment order has referred to section 44AF of the Act while estimating the business income @8% of gross receipts but as per said provision, the business income has to be assessed @5% of the total turnover during the previous year on account of such business provided total turnover of the assessee does not exceed an amount of ₹ 40 lakh in the relevant previous year. AO has not taken total turnover of assessee in the trading of cloth and the AO has adopted higher figure taking total amount of gross receipts during the relevant financial period. The CIT has not brought out any fact to establish that the assessee had not undertaken any inquiry in regard to the alleged cash deposited to his bank account and the CIT has not brought out any fact to this effect that in absence of amount and other records, which were lost by the assessee, the AO was not correct in making estimation of business income @8% of gross receipts and the conclusion drawn by the AO was not in accordance with the provisions of the Act and thus, the same was unsustainable in law. Per contra, as we have already noted that the AO inquired from the assessee about the amount of cash deposited during the relevant financial period and after considering the reply of the assessee wherein the assessee stated that he had lost his books of accounts and other records, then the AO had no alternative but to estimate the business income of the assessee by taking a reasonable and appropriate recourse. Thereafter, the AO proceeded to estimate the business income of the assessee @8% of gross receipts by merely referring to section 44AF of the Act. We cannot ignore this fact that in the letter dated 20.12.2013, the assessee pressing into service his revised computation of income pleaded that the surrendered amount may be considered as business income being 5% of gross receipts but the AO adopted higher percentage of 8% for estimation of business income which is very favourable to the revenue. It is also relevant to point out that the AO has taken 5% on gross turnover for AY 2010-11 viz. preceding assessment year to the present assessment year in the assessment order passed u/s 143(3) of the Act. On the basis of foregoing discussion, we reach to a logical conclusion that the view and approach taken by the AO in framing original assessment order passed u/s 143(3) was quite justified, reasonable and in accordance with the provisions of the Act. - Decided in favour of assessee
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2015 (10) TMI 1757
Disallowance u/s 40(a)(ia) - whether TDS disallowance applies only to amounts ‘payable’ as on 31st March and not to amounts already paid during the year - CIT(A) deleted the disallowance - Held that:- The issue of paid or payable as envisaged under section 40(a)(ia) of the Act has been considered by Pune Bench of Tribunal in various decisions and ait has been held that in view of the decisions of various Hon’ble High courts on this issue, the provisions of section 40(a)(ia) of the Act are attracted even where the payments in respect of the expenditure claimed is made before the close of year. We find the issue of paid / payable as envisaged under section 40(a)(ia) of the Act has been dealt with by Pune Bench of Tribunal in Sangamner Taluka Sahakari Dudh Utpadak [2015 (3) TMI 265 - ITAT PUNE] and Prakriya Sangh Maryadit Vs. TRO (2015 (3) TMI 265 - ITAT PUNE), wherein, the issue was decided against the assessee. Deduction on account of expenditure u/s 194C - plea raised by the assessee that it had made individual payments to the truck owners, which were less than ₹ 20,000/-, even in some cases, whether the payments were more than one, the aggregate of payments during the year did not exceed ₹ 50,000/- - Held that:- s. The payments shown against such numbers cannot be allowed as a deduction, where the assessee has failed to furnish the information. Similarly, the verification exercise carried out by the Assessing Officer revealed that the PAN numbers given by the assessee did not match with the PAN numbers available in the computer system and in view of the said discrepancies, onus was upon the assessee to explain the same and to establish its case of having individually paid the amounts to different people of amounts not exceeding ₹ 50,000/- in a year. Where the assessee fails to discharge the onus cast upon him, then no benefit of provisions of the Act can be allowed to the assessee. In the entirety of the above said facts and circumstances, we deem it fit to restore this issue back to the file of Assessing Officer, who shall confront the assessee with the results of verification exercise carried out and as referred in the assessment order and after considering the reply of assessee, to decide the issue as per facts and in accordance with law. We find that though the assessee had received Form No.15I from the transporters for non-deduction of tax at source, but the same were not filed before the Commissioner. Though the requirement of the Act is that the said Form No.15I should be filed before the Commissioner and in such cases, there is no requirement for deduction of tax at source. We hold that even where the assessee has failed to furnish the said Form No.15I before the Commissioner within the stipulated time, no disallowance could be made under section 40(a)(ia) of the Act, in view of the ratio laid down by the Hon’ble High Court of Gujarat in CIT Vs. Valibhai Khanbhai Mankad (2012 (12) TMI 413 - GUJARAT HIGH COURT). The assessee claims that it had furnished the said Form No.15I with the Assessing Officer and he has failed to consider the same. We direct the Assessing Officer to verify the assessment records and allow the claim in line with the directions of Hon’ble High Court of Gujarat. - Decided in favour of assessee by way of remand. Addition u/s 68 - receipt of gifts - Held that:- The concept of receiving gift from wife is acceptable. However, onus is upon the assessee, to establish the identity of the person and also the creditworthiness of the person giving the gift. The first aspect of the issue is that the gift received by any person should be irrevocable. However, in the case of the assessee before us, the said gift if claimed to be received from his wife, has been declared as a liability by the assessee, in case the amount is liable to be paid by the recipient, then it cannot be held to be a gift received by the recipient, since there is no liability in transaction of gift. Secondly, onus is upon the assessee to establish that the person who had given the said gift has the capacity to give the gift. The perusal of return of income filed by the wife of the assessee, reflects that for assessment year 2006-07, net income of the wife of assessee was ₹ 1,20,650/-, for assessment year 2007-08, it was ₹ 1,25,040/-and for assessment year 2008-09, it was ₹ 1,43,350/-. For the instant assessment year i.e. assessment year 2009-10, the total income declared by the wife of assessee was ₹ 1,57,478/- as against receipts from business of ₹ 4,32,680/-. Undoubtedly, wife of the assessee had shown the gift of ₹ 5,00,000/- and debited to her capital account in the balance sheet, but the assessee has failed to explain the source of the said gift. Looking at the income declared by the wife of assessee from year to year, we find no merit in the claim of the assessee and rejecting the same, we uphold the addition of ₹ 5,00,000/- on account of two aspects of the issue as discussed above. - Decided against assessee.
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2015 (10) TMI 1756
Addition u/s 68 - whether the assessee failed to prove the identity of investors, their creditworthiness/ investments and genuineness of the transaction of capital introduction? - CIT(A) deleted the addition - Held that:- As during the course of assessment proceeding, complete details were not available with the Assessing Officer and that is why he has treated share application money as bogus and made the addition of the same. But before the CIT(A) in response to remand report when fresh commission was issued to ADIT(Inv.) Kolkata who in turn issued notice u/s 131 to all shareholders companies and in response thereto replies were filed by all the companies. All the shareholders companies have filed the copy of confirmation, copy of bank statements, copy of audited balance sheet and profit and loss account for the ended year on 31.03.2010 along with reply to the notice u/s 136 of the Act. All these details were available before the CIT(A) while adjudicating the issue and with all these evidence the genuineness of transaction identity and creditworthiness of creditor have been proved. Therefore, we are of the view that since the assessee has discharged its primary onus of proving the genuineness of transaction, identity and creditworthiness of shareholders, the addition u/s 68 of the Act is not called for. The addition cannot be sustained only for the simple reason that these shareholder companies have not responded in first round of commission. The ADIT(Inv.) has initially reported that the parties are not available at given address but in second round of commission the parties have come forward and submitted their requisite reply in order to justify the financial credibilities. In the light of all these facts, we are of the view that the CIT(A) has rightly adjudicated the issue in favour of the assessee.
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2015 (10) TMI 1755
Stay of collection of tax rejected - demand for the AY 2012-13 arose on account of wrong claim of deductions u/s 54 - Held that:- Assessing Officer is required to act in a fair manner and need to consider the stay petition independently and pass a speaking order stating reasons as to why the stay application of the petitioner is not required to be considered, as the order passed by the Assessing Officer may either be upheld or otherwise revised by the appellate authority. In the present case, as the order passed by the Assessing Officer in the stay application being a non-speaking order, the same is liable to be set aside. Accordingly, the impugned order is set aside. The 1st respondent is directed to consider the stay application afresh keeping in view the instructions in CBDT Circular No.1914 dated 02.12.1993. The petitioner is given liberty to submit further representation and bring additional facts, if any, to the notice of the Assessing Officer. It is needless to mention that an opportunity of hearing may be afforded, if the petitioner so desires.
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2015 (10) TMI 1754
Entitlement to exemption under Section 54 - whether the assessee failed to construct a habitable house within a period of three years from the date of transfer - ITAT allowed the claim - Held that:- The benefit of section 54(1) is available, if the assessee has, within a period of one year before or two years after a date on which the transfer took place, purchased, or has, within a period of three years after that date, constructed, a residential house in India. The fact that the assessee sold the residential house at Chennai onn 28.11.2007 and the fact that he purchased three adjoining residential house-sites on 10.3.2008 are not in dispute. The fact that the purchase of the residential sites was at a cost of ₹ 1,18,94,408/- and the fact that an advance of ₹ 70,00,000/- was paid to a builder on 28.6.2008 are also not in dispute. Therefore, the assessee has actually purchased three residential sites within a year and had entrusted the work of construction to a builder. If the completion of construction had been delayed on account of the delay in the Airports Authority of India in giving clearance and the Town Planning Authority giving approval to the building plan, the benefit of section 54 cannot be denied to the assessee. After all, the object of section 54(1) is to ensure that if the sale proceedings are invested in a residential house, the assessee should be entitled to the benefit. - Decided in favour of assessee.
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2015 (10) TMI 1753
Claim of reward - petitioner’s case that he had supplied information to the Income Tax Authorities regarding alleged tax evasion by All India Personality Enhancement and Cultural Society for Scholars (AIPECCS Society)/Col. Satsangi Kiran Memorial Group - Held that:- The Assessee, AIPECCS Society had successfully challenged the assessment made under Section 158BC before the Income Tax Appellate Tribunal and the Tribunal had set aside the assessment made. The Revenue appealed against the aforesaid decision, in an appeal filed under Section 260A - By a judgment of this Court [2015 (10) TMI 600 - DELHI HIGH COURT] upheld the Tribunal’s order and rejected the Revenue’s appeal. Since the assessment framed in respect of AIPECCS Society pursuant to the search conducted on 15th January, 1999 has been quashed, the petitioner would not be entitled for any reward in respect of the said assessment. Accordingly, the present petition is dismissed.
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2015 (10) TMI 1752
Disallowance u/s. 14A - Tribunal restored back the issue of disallowance to the Assessing Officer for fresh consideration - Held that:- the impugned order of the Tribunal has restored both the issue to the Assessing Officer i.e. with regard to the applicability of Section 14A of the Act with a direction that in case the RespondentAssessee fails to satisfy the Assessing Officer of utilization of its own funds and/or interest free funds for the purpose of making investment in the light of the order in Reliance Utilities & Power Ltd. (2009 (1) TMI 4 - HIGH COURT BOMBAY), then in that event, the disallowance be determined under Section 14A of the Act. This, undoubtedly would be on an application of a reasonable method as held by this Court in Godrej & Boyce (2010 (8) TMI 77 - BOMBAY HIGH COURT). Thus, we are at a loss to understand the grievance of the revenue. No substantial question of law. - Decided against revenue.
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2015 (10) TMI 1751
Revision u/s 263 - CIT directed the AO to reframe the assessment denovo after allowing rebate under Section 88E of the Act on more careful examination - ITAT quashed revision orders - Held that:- There is no prescribed formula under Section 88E of the Act to determine the quantum of the rebate thereunder. Therefore the same has to be computed on a reasonable and scientific manner by the Assessing Officer. Further the impugned order has placed reliance upon the decision of this Court in CIT Vs. Gabriel India Ltd. [1993 (4) TMI 55 - BOMBAY High Court] wherein this Court held that the order cannot be held to be erroneous merely because according to the CIT, the order should have been written more elaborately or for substituting the view of the Assessing Officer with that of the CIT. The Court held that merely because the CIT had a different view from that reached by the Assessing Officer would not by itself make the view of the Assessing Officer erroneous. To be an erroneous order it must be in breach of law. It is axiomatic that jurisdiction under Section 263 of the Act can only be exercised on cumulative satisfaction of the twin conditions viz. of the order being erroneous in law and the order being prejudicial to the interest of the revenue. Thus in this case, one of the two conditions precedent to exercise jurisdiction under Section 263 of the Act viz. Order being erroneous in law is not satisfied. Moreover the CIT in exercise of powers under Section 263 of the Act directed the Assessing Officer to redetermine the rebate allowable under Section 88E of the Act after holding that the same needs more careful examination on the part of the Assessing Officer. This itself indication of the fact that this is not the case of lack of enquiry, but at the highest it can be a case of inadequate enquiry. It is settled position in law that inadequate enquiry by itself would not justify invoking the jurisdiction under Section 263 of the Act unless the order is erroneous. - Decided in favour of assessee.
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2015 (10) TMI 1750
Revision u/s 263 - whether AO allowing deduction under Sections 36(1) (viia) (c) and 36 (1) (viii) in favour of the Assessee was erroneous as well as prejudicial to the interest of the Revenue? - Held that:- The Court is satisfied that in terms of the law explained by the Supreme Court in Malabar Industrial Co.Ltd. v. CIT (2000 (2) TMI 10 - SUPREME Court) as followed in CIT v. Honda Siel Power Products Ltd. (2010 (7) TMI 38 - HIGH COURT OF DELHI) the view taken by the AO in the present appeal is a possible one and there was no occasion for the CIT to have exercised jurisdiction under Section 263 of the Act. The impugned order of the ITAT therefore does not suffer from any legal infirmity. - Decided in favour of assessee.
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2015 (10) TMI 1749
Exemption available as per Section 11 (i) (a) - ITAT remanded matter to the Commissioner of Income Tax (Appeals) to examine case of assessee - Held that:- It is relevant to note that the assessee claimed exemption under Section 11(i)(a) of the Income Tax Act, 1961 but the Commissioner of Income Tax (Appeals) examined the same in light of provisions of Section 11 (2) of the Act of 1961. The Tribunal remanded the matter with direction to adjudicate the entire matter afresh by taking into consideration provisions of Section 11(1) (a) of the Act of 1961. In our considered opinion the remand made by the Tribunal is in accordance with law. Setting off of excess expenditure in income of earlier years - Held that:- It is not in dispute that the assessee is creation of a statute and from inception that is a charitable institution. It is also pertinent to notice that subsequent to the year 2009 the exemption as allowed by ITAT is avaialble to the assessee. In view of it, we do not find any just reason to interfere in the instant matter being having no subsequent question of law involved. The appeal is dismissed accordingly.
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2015 (10) TMI 1748
Validity of reopening of assessment - interest from money lending income is business income and not income from other sources which is the only reason for the very issuance of notice under section 148 - Held that:- In view of judgment of Commissioner of Income Tax I, Ludhiana vs. Smt.Pushpa Gupta (2015 (10) TMI 1741 - PUNJAB AND HARYANA HIGH COURT) deciding the issue by holding that the income derived by the assessee was assessable under the head 'Income from business or profession' the appeals have been rendered infructuous and may be disposed of as such.
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2015 (10) TMI 1747
Transfer pricing adjustment - rejecting the methodology followed by the assessee for benchmarking of international transactions - TNMM v/s CUP method - Held that:- The associate enterprises’ segment also includes controlled transactions, wherein material imported had been used for manufacturing geysers / water heaters, which in turn, were sold both to associate enterprises and non-associate enterprises. All these above said explanations have been rejected by the TPO/DRP without any basis, wherein similar explanation has been accepted by the TPO itself in all the other years. The conduct of the business and the products manufactured are identical in the year under consideration, when compared to the other years i.e. assessment year 2005-06, 2007-08, 2008-09 and 2010-11. In the entirety of the above said facts and circumstances, we are of the view that the adoption of TNMM method was the most appropriate method for benchmarking international transactions with its associate enterprises and we find no merit in the order of Assessing Officer in adopting CUP method to benchmark the international transactions with its associate enterprises. We hold that the TNMM method should be applied on aggregate basis for benchmarking international transactions of the assessee. Benchmarking international transactions with its associate enterprises on aggregate basis, TNMM method should be applied and since the margins declared by the assessee are higher than the margins declared by the comparables picked up by the assessee in its TP study report and consequently, the international transactions entered into by the assessee with its associate enterprises being at arm's length price, no addition is warranted in the hands of the assessee. Accordingly, we delete the addition. - Decided in favour of assessee.
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2015 (10) TMI 1746
Reopening of assessment - enhancement of taxable income - taxation income from transfer of assets - Held that:- The impugned order of the Commissioner of Income Tax (Appeals) needs to be set aside on the reason that the Commissioner of Income Tax (Appeals) considered the income under the head "income from business" and invoked the provision of section 50C to determine the sale consideration at E64 crores on the basis of guideline adopted for stamp valuation purposes by State Government. On analyzing the language used by the legislature in Sec. 50C, following prominent aspect can be seen that the said section specifically deals with the transfer of the ‘capital asset’ being land or building or both and it provides for replacing the value adopted or assessed for the purpose of stamp duty more particularly under sec. 48 in place of value or sale consideration shown by the assessee. It is to take note that the expression ‘capital asset’ has specific relevance with sec. 45 which provides for brining to tax on transfer of ‘capital asset’ as capital gain. It is abundantly clear from the explanation given in circular No.8 of 2002, dated 27th Aug, 2002 that the basic intention to insert sec. 50C is for the purpose of determining full value of sale consideration for the purpose of computation of capital gains under sec. 48. The issuing of notification or circular is good guide of contemporaneous exposition of the position of the law and this rule is popularly known as "contemporanea expositio". There should not be any cloud of doubt that sec. 50C has application only to the extent of determining sale consideration for computation of capital gain under Chapter IV-E of the Act and it cannot be applied for determining the income under other heads. Therefore, when admittedly in the present case the sale of the property is treated as the business income and not as a capital gain, the provision of Sec.50C is not applicable. Being so, considering the entire facts and circumstances of this case, we are of the opinion that the Commissioner of Income Tax (Appeals) is not justified in enhancing the assessment.
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Customs
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2015 (10) TMI 1848
Waiver of pre deposit - validity of interim order passed by the tribunal - tribunal granted 50% stay - none of the orders are reasoned orders assigning any reasons for asking the petitioner to pre-deposit 50% of the customs duty - Benefit of CVD - Held that:- All that is stated in the orders dismissing the applications for modification is that the Tribunal does not find any merit in the applications; however, the merits of the applications have not been discussed in any of the orders passed by the Tribunal. - Tribunal does not have any powers of review as held in the decisions on which reliance has been placed by the learned counsel for the respective parties; however, as observed by the Bombay High Court in the case of Union of India v. Sir Hurkisondas Norottam Hospital & Medical Research Centre, (2005 (4) TMI 100 - HIGH COURT OF JUDICATURE AT BOMBAY), the Tribunal has powers to rectify its mistake or error and to modify its order. Merely because the petitioner is more vigilant about its right is no reason to non-suit the petitioner on the ground that other similarly situated assessees have not thought it fit to move applications for modification of the order of pre-deposit. When the petitioner has moved an application for modification before the Tribunal and has made out a case of changed circumstances and there is a convention to grant complete waiver of pre-deposit when the matter is referred to the Larger Bench, there was no reason for the Tribunal not to grant similar benefit to the petitioner, that too, without expressing any reason as to why such benefit was not required to be granted. Under the circumstances, the impugned order passed by the Tribunal dismissing the stay application filed by the petitioner as well as the appeal on the ground of non-compliance of the order of pre-deposit cannot be sustained. - Ordinarily, while setting aside the order passed by the Tribunal, this court would remand the matter to the Tribunal for deciding the matter afresh, however, considering the fact that in the case of similarly situated assessees, the Tribunal has already granted complete waiver of pre-deposit and it is a convention to grant waiver of pre-deposit in case the matter is referred to the Larger Bench, no fruitful purpose would be served in remanding the matters to the Tribunal. - Stay granted.
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2015 (10) TMI 1776
Mis-declaration of goods – Front End Engineering Package (FEEP) - Appellant classified under Chapter Heading 49.01 – SCN issued claiming extended period of limitation and product to be covered under the head 4911.99 wherein full exemption is not available - Held That:- when the declaration was filed by the respondent, in view of the position in law that was prevailing at that time, it was a bona fide declaration and cannot be treated as misdeclaration. - Extended period of limitation provided under Section 28 of the Customs Act, 1962, could not have been availed by the Department – Declaration filed by the assessee is bonafide under the head 49.01 and cannot be said as mis-declaration of goods - Decision made in the case of Commissioner of Customs (General), New Delhi v. Gujarat Perstorp Electronics Ltd. [2005 (8) TMI 657 - Supreme Court of India] followed - Appeal dismissed in favour of assessee.
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2015 (10) TMI 1775
Valuation - Zinc Die Cast Scrap imported; claimed classification under Chapter Sub-Heading 7902.00 – On examination, very few pieces were found to be scrap and balance all items were found to be unused and they were serviceable – High Court held that the imported goods are nothing but scrap and valued the same as per the highest bid received. - Seizure and confiscation of goods under Section 111(d) and 111(m) of the Customs Act, 1962 Held That:- After reading the report obtained by Department, it is evident that items imported were nothing but scrap - Valuation report obtained by Department cannot be acted upon as it did not value the product correctly – Department had no other evidence to value goods thus the High Court had no other option but to go by the highest bid – No merit found in the appeal – Decided against the Revenue.
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2015 (10) TMI 1774
Clearance of where-housed goods - Effective rate of duty on Ex-Bond clearance - rate of duty changed after 'out of charge' order issued - Whether it was lawful on part of Respondent in demanding differential amount of duty on the basis of notification dated 03.08.2001 on balance quantity of consignment covered by Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively? – Revenue states that the contention that Ext.P6 notification came into force only on 03.08.2001 is no more available to the Respondents – Petitioner contends that it has obtained 'out of charge' from Customs, much prior to 06.08.2001, the date on which Ext.P6 notification No.36/2001-CUS (NT) issued; thus not liable to pay differential duty. Held That:- Having obtained 'out of charge' order for home consumption issued by proper officer in compliance of Section 68 of the Act and licence of private warehouse stood cancelled before 06.08.2001, the date of which Ext.P6 notification dated 03.08.2001 issued by Respondent, petitioner is not liable to pay differential duty - Respondent shall pass appropriate orders releasing the bank guarantee for differential duty amount in terms of orders of this Court, within a period of one month – Decision made in the case of Priyanka Overseas (P) Ltd.'s case (supra) [1990 (11) TMI 145 - SUPREME COURT OF INDIA] followed – Decided in favour of the assessee.
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2015 (10) TMI 1773
Rejection of refund claim – Unjust enrichment – Impugned orders rejected refund claims of appellants on grounds of unjust enrichment –Whether bar of unjust enrichment is applicable to cases wherein assessment has been finalized after 13.07.2006 but provisional assessment has been made prior to that under Customs Act or not – Held that:-In appellants own previous case wherein appellant sought relief of excess duty paid, came to be rejected on grounds that claim is hit by bar of unjust enrichment – In said case after consideration it was concluded that there was no unjust enrichment in view of fact that price of MS petro product is being fixed by Government – In present case also, admittedly price has been administered by APM regime and selling price has been fixed by Government – Therefore, facts of appellant’s own case are similar to facts of this case – In said circumstances, bar of unjust enrichment is not applicable to facts of these appeals – Appellant is entitled for refund claim – Impugned orders set aside – Decided in favour of assesse.
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2015 (10) TMI 1772
Duty chargeable on quantity of goods received or invoice value – Appellant claimed that Customs duty under Section 12 of Customs Act, 1962 is chargeable on basis of quantity of goods received in shore tank in cases of import of bulk liquid cargo and not on invoice value – Held that:- Tribunal in case of Hindustan Petroleum Corporation Ltd [2012 (7) TMI 356 - CESTAT, AHMEDABAD] held that, even if appellant would have received lesser quantity of goods in shore tanks, invoice value charged and paid by appellant would be correct value unless there is clear evidence that they have paid less amount or they have paid value/price for quantity received in shore tanks – Additional Duty under Finance Act is levied and collected as duty of Customs as per provisions of Finance Act itself – Court is in agreement with decision of Tribunal in case of Hindustan Petroleum Corporation Ltd and accordingly, impugned order is upheld – Decided against Assesse.
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Corporate Laws
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2015 (10) TMI 1771
Winding up Petition of unpaid dues of salary - Asset Management Business - Whether unpaid wages/salary of workman/employee can be covered within the meaning of debts under Section 433(e) of the Companies Act, 1956 and view taken in the matter of Pawan Kumar Khullar Vs. Kaushal Leather Board Limited in this regard is correct? – Petitioner contends that Respondent paid no heed to discharge its debts payable towards outstanding salary and emoluments for services rendered – Respondent contends that dues towards salary does not become “debt” under Section 433(e) and employee of cannot pursue claim in that behalf as Creditor by filing a Petition under Sections 433 and 434. Held That:- No provision of any statute much less of the Companies Act has been brought to notice which excludes the dues to be received by employee – Court disagrees with opinion made in the case of Pawan Kumar Khullar Vs. Kaushal Leather Board Limited [1995 (3) TMI 383 - HIGH COURT OF MADHYA PRADESH] as it is not possible to countenance that unpaid salary is not a debt – Section 529A does not state that the amount receivable by employees, who may not be workmen as such, is not a debt or that they are excluded from the term “creditors” – Employee can locus to file Company Petition in respect of unpaid wages and emoluments, same as creditor of Company and opinion of High Court in case of Pawan Kumar Khullar (supra), is overturned – Decided in favour of Petitioner.
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Service Tax
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2015 (10) TMI 1857
Club membership service - co-operative society - service tax liability on the various fees collected by them from the members in respect of the functioning of the Society - activit of accepting deposits and giving loans to members - Levy of Penalty – Held That:- the appellant assessee is functioning as a co-operative Society for their members and welfare of their members only. They do not extend any loan or accept any deposits from public at large. The services rendered by the appellant assessee, if any, is to their own members is undisputed. - Reliance placed in the case of Green Environment Services Co-op. Soc. Ltd. [2014 (12) TMI 1097 - GUJARAT HIGH COURT] was correct – Section 65(25a), Section 65(105)(zzze) and Section 66 of the Finance (No. 2) Act, 1994 as incorporated/amended by the Finance Act, 2005 to the extent that the said provisions purport to levy Service Tax in respect of services purportedly provided by the petitioner club to its members, to be ultra vires. Rule is made absolute with no order as to costs - Appeal of revenue rejected and that of assessee is accepted – Decided in favour of assessee.
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2015 (10) TMI 1856
Liability of Service Tax on recruitment of manpower and supply services – extended period of limitation - Held That:- Services of supply various personnel to shipping companies are taxable under Manpower Recruitment and Supply Agency Services - Extended period of limitation cannot be invoked since the information was available with the department well in advance - Further, appellant could have entertained a bona-fide belief that they are acting as a pure agent while transmitting the amount of salaries, wages and allowances Shipping Corporation of India to the staff supplied by them. - SCN demanding the service tax for the period July 2005 to March 2007 is hit by limitation except for the period which is within limitation - Decided partially in favour of Appellant.
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2015 (10) TMI 1855
Availment of CENVAT Credit – input services - service tax paid on the Activity of providing/selling SIM cards/recharge coupons was availed and utilized for payment of service tax on commission income under Business Auxiliary Service - Penalty under Section 76 - Held that:- the service tax paid by M/s Aircel Digilink India Ltd. Co. was on services which were clearly neither provided to the appellant/assessee nor were eligible to be called input service in its (appellant/assessees) respect. - Impugned CENVAT credit is inadmissible; services on which it was taken were not input services for the assessee but also because the output service of the appellant assessee was not taxable including under Business Auxiliary Service - Penalty under Section 76 cannot be sustained as no service tax is held to be payable by the assessee as per Section 68 ibid – Cenvat Credit inadmissible and recoverable and penalty imposed as such ₹ 2,000/- under Rule 15 (3) ibid – Decided in favour of Revenue.
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2015 (10) TMI 1854
Liability of Service Tax on Completion and Finishing Services, painting of properties belonging to the railways and bus stand, service of painting of plant and machinery of NTPS and service of laying underground sewerage pipeline Held That:- Completion and Finishing Service are covered under ‘Construction of Complex’ defined in Section 65(30a) and NTPS have constructed residential quarters for their own employees and not for personal use; thus not liable to service tax. Painting of properties belonging to railways is excluded from definition of Commercial or Industrial Construction Service and the term railways does not include services provided i.r.o roads, airports, railways, transport terminals, bridges, tunnels and dams; thus not liable to service tax. Painting of bus stand gets excluded from service tax as it gets covered under transport terminals excluded from the scope of service tax. Painting of plant and machinery of NTPS is an activity covered under Commercial or Industrial Construction Service under Section 65(25b) but they charged for electricity generated so as to able to provide electricity to public on self-sustaining basis; thus activity cannot be called commercial and service tax is not payable on the same. Laying of sewage pipe does not get covered in the activity of drain laying as both are not synonymous thus the benefit should go in favour of Appellant; same is not taxable to service tax. Appeal dismissed – Decided in favour of Assessee.
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2015 (10) TMI 1853
Rejection under VCES, 2013 – Statutory provision of Appeal under VCES - Powers of Commissioner (Appeals) to entertain the appeal - Revenue contends that VCES, 2013 does not have any provision for filing appeal against the order passed rejecting the declaration and has issued communication rejecting the declaration - Appeal filed by Respondent thus not maintainable. Respondent contends that deposit made was sufficient to discharge the obligation of deposit of 50% of declared tax dues and communication rejecting the declaration was not properly communicated through SCN. Held That:- VCES cannot have an independent existence thus all provisions of Act except to the extent specifically excluded would be applicable – Finality of the scheme could be attained from the communication of the Revenue and it is for the designated authority to decide whether the SCN has to be issued or not - Argument of the Revenue to file writ petition as remedy does not make any sense – Decision made in the case of Narasimha Mills Pvt. Ltd. Vs. CCE (Appeals) [2015 (6) TMI 787 - MADRAS HIGH COURT] followed – Appeal is maintainable - Decided against the revenue.
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2015 (10) TMI 1852
Availability of CENVAT Credit - Courier Services and Tour Operator Services - Held that:- Issues are not more res integra and stands settled by various decisions of the higher Courts. In the case of Commissioner of Central Excise, Nagur vs. Ultratech Cement Ltd.: [2010 (10) TMI 13 - BOMBAY HIGH COURT ], it was observed that the definition of input service is very wide and any services received in connection with the business activities, either before or after the manufacturing of goods, have to be held as cenvatable input services. Reference can also be made to the Tribunal's decision in the case of Commissioner of Central Excise vs. Wiptech Peripherals Pvt. Ltd.: [2008 (6) TMI 13 - CESTAT AHMEDABAD] where tax paid on courier services was allowed. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1851
Denial of CENVAT Credit - Goods Transport Services - outward transportation of goods - Held that:- Issue is decided by the Hon’ble High Court of Karnataka [2011 (3) TMI 248 - KARNATAKA HIGH COURT] and Hon'ble Gujarat High Court [2011 (4) TMI 975 - GUJARAT HIGH COURT] in favour of the Respondent. It is seen that the Hon’ble High Court of Calcutta [2013 (12) TMI 1025 - CALCUTTA HIGH COURT] granted interim stay. - respectfully following the decision of the Hon’ble Gujarat High Court and Hon’ble Karnataka High Court, I do not find any reason to interfere with the order of Commissioner (Appeals) - Decided against Revenue.
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2015 (10) TMI 1850
CENVAT Credit - duty paying document - service tax under reverse charge availed as cenvat credit on the basis of TR-6 challan - Business Auxiliary Services - Held that:- Issue involved in this case is fully covered by the decision of this Tribunal in the case of JSW Steels Ltd. (2008 (9) TMI 74 - CESTAT, CHENNAI ). I also find that as the Credit was taken by the assessee on the basis of TR-6 challan, Explanation to Rule 9 (1) (b) of Cenvat Credit Rules, 2004 is not applicable in the present case. Therefore, I hold that there is no infirmity in the impugned order - Decided against Revenue.
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2015 (10) TMI 1849
Penalty imposed under Section 76,77 & 78 of Finance Act, 1994 - Delay in payment of Service Tax on services of management service to MESCOM - Order of original adjudicating authority revised; imposed penalties under said Sections - Held That:- Commissioner cannot revise the order in which the original authority has imposed penalty - Issue is covered by Notification No. 45/2010-S.T. wherein all services relating to transmission and distribution of electricity are exempted from tax; when tax was not payable, question of imposition of penalty also does not arise - Order set aside with consequential Relief - Decided in favour of assessee.
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Central Excise
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2015 (10) TMI 1845
Writ petition - Valuation - related person - Short payment of duty - revenue neutral exercise since the recipient is able to avail Cenvat Credit - Appellant contended that order passed by the Appellate Commissioner is a non speaking one to the extent it has not considered and dealt with the most important contentions raised before it - Held that:- in the absence of any reasons having been assigned for not accepting the principal contention raised by the petitioner, it is evident that the impugned order suffers from the vice of breach of principles of natural justice. It is settled legal position as held by the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, [1998 (10) TMI 510 - SUPREME COURT], that the alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, viz. where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. The present case, therefore, clearly falls within the categories enumerated in the above decision viz. violation of the principles of natural justice. - writ petition admitted. Thus, under rule 8 of the Valuation Rules if the assessee does not sell excisable goods but such goods are used for his own consumption or on his behalf in the production or manufacture of other articles, the value of such goods shall be 110% of the cost of production or manufacture of such goods. Under rule 9 of the Valuation Rules, when the arrangement of assessee is such that the excisable goods are not sold by it except through a related person, the value of the goods shall be the normal transaction value at which they are sold by the related person at the time of removal to buyers (not being related person) or where such goods are not sold to such buyers, to buyers (being related person), who sells the goods in retail. Appellate Commissioner has lost sight of the main contention raised by the petitioner that it is not liable to pay duty either under rule 8 or rule 9 of the Valuation Rules, because the related party has already paid central excise duty on the transaction value of the goods sold by it. The facts reveal that the petitioner had made reference to rule 8 of the Valuation Rules only by way of an alternate submission and the controversy was not as to which of the two rules would apply. The petitioner has also produced before the concerned authorities, documentary evidence to co-relate the sales made by the petitioner to VCL at which point of time, central excise duty was paid on the transaction value, which however, have not been considered by either authority. Therefore, as rightly submitted by the learned counsel for the petitioner, the impugned orders suffer from the infirmity of being nonreasoned orders as the same do not deal with the main contention raised by the petitioner. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights. Thus, giving sufficient reasons to demonstrate that the relevant factors having considered objectively is a primary requirement to be satisfied by a judicial or quasi judicial authority. The requirement of reasons has been considered to be virtually a component of human rights. Under the circumstances, the impugned orders, which suffer from the basic infirmity of being non-reasoned orders inasmuch as both, the adjudicating authority as well as the Appellate Commissioner have failed to consider the relevant factors and the submissions advanced by the petitioner, cannot be sustained. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 1844
Denial of Abatement claim - Determination of annual capacity of production - Held that:- The abatement of duty under consideration in respect of Stenter of 'SM ECON-2100 make are for the period of closure from 06.11.1999 to 14.11.1999, 10.12.1999 to 18.12.1999 and 11.02.2000 to 19.02.2000 and in respect of Stenter of PRIMATEX for the period of closure from 10.01.2000 to 18.01.2000 wherein the duty payable on the stenters installed in the factory premises has to be paid in advance during the months of November, 1999, to February, 2000, in terms of closure (e) to sub-Rule (7) of the Rule 96ZQ of the Rules. - It is not even necessary to go into this question because of a simple reason. The vires of the aforesaid Rule was challenged before the Madras High Court in Beauty Dyers v. Union of India [2001 (12) TMI 95 - HIGH COURT OF JUDICATURE AT MADRAS] and the High Court held the said Rule to be ultravires the erstwhile Section 3A of the Act. Special leave petition was preferred by the Union of India against the said judgment which was dismissed by this Court. The judgment is reported by the Madras High Court in Commissioner of Central Excise v. M/s. Entex Pvt. Ltd. – [2015 (9) TMI 827 - MADRAS HIGH COURT]. - It becomes clear that the respondent was not supposed to pay any duty, more so, when the entire exercise was revenue neutral. It legitimately claimed the rebate. We, thus, do not find any reason to interfere with the impugned judgment of the High Court. - Decided against Revenue.
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2015 (10) TMI 1843
Classification of goods - Classification of "Woven fabrics of silk, silk-wool fabrics" - Classification under Chapter sub-heading 5111.29 or under Chapter sub-heading 5005.90/5005.20 - Held that:- The only objection raised by the Revenue is that when the issue was remitted back for re-determination it should have been open remand and should not have remarked that "Dry Weight Standards" should be applied and even in respect of that the matter should have been left open for the Adjudicating Authority to take a call thereof. This suggestion is accepted by the learned counsel for the assessee. We, therefore, modify the directions with the observations that on remand when the matter is to be re-determined by the Adjudicating Authority, it is an open remand and it would be permissible for the Adjudicating Authority to go into all the relevant issues in determining the classification. - Appeal disposed of.
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2015 (10) TMI 1842
Delay in payment of duty - payment of duty without utilizing the cenvat credit - Held that:- This being a small scale unit, the appellant assessee was paying excise duty on monthly basis as per Rule 173 G of CER, 1944 from 01.04.2000. SCN No. 692/2003 dated 16.06.2003 was issued based on the amendment to Rule 173G (I) (e) w.e.f. 11.02.2001, which was later substituted by Rule 8 of CER, 2001. It cannot be disputed that the provision of Rule 8(4) are pari materia with Rule 173 G (I) (e) and the non-obstantive clause was introduced by insertion of sub-rule 3A in Rule 8 of CER, 2002 only w.e.f. 31.03.2005, while the period in dispute in the present case is prior to that date. - condition contained in sub-rule (3A) of Rule 8 of CER, 2002 for payment of duty without utilizing the cenvat credit till an assessee pays the outstanding amount including interest is unconstitutional and that the subsequent proceedings initiated by the department for demanding tax was set at naught. - condition contained in Rule 8 (3A) of CER, 2002 for payment of duty without utilization of cenvat credit is contrary to the scheme of availment of cenvat credit under CCR and the said Rule 8 (3A) is arbitrary and violative of Article 14 of the Constitution. Accordingly, the Hon’ble High Court has struck down the Rule 8 (3A) as unconstitutional. The jurisdictional Hon’ble Madras High Court’s ruling is binding on the jurisdictional adjudicating authority and also binding on this Tribunal. - demand of duty under Rule 8 (3A) is unsustainable as the said Rule has been struck down by the Hon’ble High Courts [2015 (5) TMI 603 - MADRAS HIGH COURT] and the demand of duty and penalty imposed in the impugned order is liable to be set aside - Decided in favour of assessee.
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2015 (10) TMI 1841
Clandestine removal of goods - discrepancy in RG-1 register - semi finished goods - It is the case of the appellant that all goods mentioned in the Blender register do not became ripe for clearances till the blended dye sample is approved by the customer. That in case of non approval the batch prepared is not cleared. It is also the case of the appellant that a new batch is prepared as per the desired quality of the customer either by improving the earlier batch or otherwise and earlier entry made in the Blender Register is struck-off. - Held that:- that case of clandestine removal of S.O. Dyes by the main appellant is not sustainable as there is no evidence of clandestine removal of the goods calculated on the basis of entries made in the Blender register of the main appellant. - Decided in favour of assessee.
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2015 (10) TMI 1840
Valuation - Related person - mutuality of interest - SSI exemption - Held that:- As held by the Hon'ble Apex Court in the case of Alembic Glass Industries Ltd. (2002 (4) TMI 75 - SUPREME COURT OF INDIA), merely having shareholding does not make them related persons. - loans has been repaid by M/s. SIPL in future. Moreover, goods sold to M/s. CF by M/s. SIPL at a gross profit of around 16-18% and the sale by M/s. SIPL to M/s. CF is negligible in the year 2001-02 i.e. 8.9%, in the year 2003-04 i.e. 3.20% except in the year 2002-03 i.e. 20.23%. But the gross profit during the impugned period ranges from 16% to 19% whereas the total gross profit of M/s. SIPL during the impugned period is around 18%. If at all, we presume that there is a mutuality of interest in that case also when the goods are sold by M/s. SIPL to M/s. CF on the price at which the goods have been sold to independent buyers, in that case the sale price by M/s. CF cannot be held as assessable value for M/s. SIPL. Therefore, we hold that demand of ₹ 4,84,076/- is not sustainable. Accordingly, same is set aside. M/s. K S Enterprises is a sub contractor and who has got manufactured this aluminum windows in question by purchasing their own raw material and at site. M/s. K S Enterprises has issued invoices to M/s. SIPL to that extent M/s. K S Enterprises, has also filed an affidavit stating that the goods have been manufactured by them and they are not paying duty as they are enjoying SSI Exemption limit. Both the lower authorities has not given credence to the affidavit filed by Shri Kultar Singh, proprietor of M/s. K S Enterprises. In fact, no contrary evidence have been produced by the Revenue, to support that the goods have been manufactured by M/s. SIPL. In fact, duty is payable on manufactured goods not on traded goods. The affidavit is having evidential value if not proved contrary. Therefore, it is held that aluminum windows were manufactured by M/s. K S Enterprises who was enjoying SSI Exemption and M/s. SIPL is only trader for said goods. Therefore, duty cannot be demanded from M/s. SIPL. - Decided in favour of assessee.
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2015 (10) TMI 1839
Area based exemption - Classification of goods - products namely Gulabari, Keora Water and Shilajit Capsules - appellants were paying duty on these products either by utilizing Cenvat credit or by cash and claimed the same as refund of the amount paid through PLA - Exemption under Notification No. 56/2002-CE. - Held that:- In the absence of specification or definition as to what constitutes a Rose Water or a Keora Water, commercially accepted parlance has to be considered. It is not in dispute that the products labels clearly carry the name as Rose Water and Keora Water and the lower authorities conclusion for not considering them under the specific heading is not legal and tenable. These products cannot be considered as aqueous solutions of essential oils under heading 3301 as that heading deals with essential oils, products of essential oils and aqueous distillates and solutions of essential oils. Further, as per the Rules of interpretation when there is a specific heading by the very same name of the product these products cannot be put under generic heading of aqueous solution. As such, we find that these products which are emerging as manufactured items are rightly classifiable under heading 33030020 and 33030030. It is also necessary to mention here that the Department cannot take two different views in respect of same product manufactured by the same person in two different units. - present view in respect of Jammu unit is intended only to deny the benefit under Notification No. 56/2002-CE without much legal basis. Regarding classification of Shilajit Capsules - On careful consideration of the observations of the lower authority and the submissions of the appellant, we find that though the Department claimed that Shilajit Capsules are generic Ayurvedic medicine as per the formula/ingredients mentioned in Authoritative Ayurvedic text, no documentary support to the effect that the product cleared by the appellant is as per any such text has been put forth before us. The appellant produced registration of this Shilajit Capsules with the Drug Controller and in absence of any contrary evidence by the Department as mentioned above, it is clear that the Ayurvedic medicine cleared by the appellant is manufactured PP medicine and not of generic nature. - Decided in favour of assessee.
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2015 (10) TMI 1838
Admissibility of Cenvat Credit - Capital goods - Held that:- Items like MS Plates, Beams, Channels, Angles etc., when used in the repair of the capital goods would be eligible for cenvat credit but the same item when used in the making of support structures will not be eligible to Cenvat Credit. - items are only used for maintenance and repairs of their capital goods and not for making supporting structures. Reliance placed by the Learned Consultant on the list of items, duly verified by the jurisdictional Central Excise officers also do not throw any light as to where the items like MS Plates, Angles, Channels, TMT Bars etc are used. The matter is, therefore, required to be remanded back to the Adjudicating Authority to ascertain the use of these items and decide the same in view of the law laid down by CESTAT and the Supreme Court in the relied upon cases by both sides. Appellant is at liberty to produce the documents/chartered engineers certificate to the adjudicating authority to the effect that the inputs for which Cenvat Credit is claimed are used only in the maintenance and repair of the capital goods. Needless to say that the Adjudicating Authority shall give an opportunity of personal hearing to the appellant before deciding the case in the remand proceedings. So far as imposition of equivalent penalty upon the appellant is concerned, it is observed that the issue of taking of Cenvat Credit on the impugned items was the subject matter of interpretation and has been answered by the courts as late as 2011. Therefore, no penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Central Excise 1944 is attracted as the period involved in the present proceedings is from 2005-2010. - Decided in favour of assessee.
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2015 (10) TMI 1837
Levy of Penalty under Rule 26 on co-noticee - Adjudicating authority dropped the proceedings initiated by the Show Cause Notice dt.25.01.2012 against the main noticee - Held that:- Person (main noticee) had paid the duty and interest and informed the Department by letter dt.08.02.2011. Thereafter, the impugned Show Cause Notice dt.25.01.2012 was issued to the main noticee and the Appellants herein. The Adjudicating authority had dropped the proceedings initiated in the Show Cause Notice, extending the benefit under Section 11A (2B) of the said Act. - proceedings initiated under the Show Cause Notice dt.25.01.2012, has been dropped by the Adjudicating authority by invoking Section 11A(2B) of the Act, the imposition of penalty against the Appellant herein cannot be sustained. Section 11A(2B) categorically provides that no notice under sub-section (1) of Section 11A shall be served where the duty and interest paid by the person. Hence, imposition of penalty on the co-noticee cannot be sustained for the reason that the notice issued under Section 11A(1) cannot be served. Penalty on the Appellant was imposed under Rule 26 of Central Excise Rules, 2002. Rule 26 of the said Rules provides any person who acquires possession of, or is in any concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any manner deals with any excisable goods which he knows are liable to confiscation under the Act or Rules, shall be liable to penalty. In the present case, there is no demand of duty and confiscation of goods and therefore, the imposition of penalty on the Appellant is not warranted. - Decided in favour of appellant.
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2015 (10) TMI 1836
Classification of Burnt Lime - Raw lime stone is burnt along with coal in a vertical shaft kiln. - whether Burnt Lime manufactured by the respondent is classifiable as Calcium Oxide under CTH 2505.00 or not - Held that:- In the Tariff description, it is not specified ‘Burnt Lime’. Lime includes Burnt Lime also. In fact, it includes all types of limes. It is to be noted that Tariff heading as it reads now does not have specific heading for Burnt Lime, Calcium Hydroxide, etc. - What is covered by Chapter 28.25 is Calcium Oxide which of 98% purity or more. Admittedly in this case, the purity of the burnt lime is 70 to 75% only. Therefore, in view of the Board s Circular as well as HSN Explanatory Note, the product manufactured by the respondent has to be classified under CTH 25.05 only. From the raw materials used, the process employed or the parameters of the resultant product show that the Burnt Lime manufactured by the respondent is not classifiable under CETH 28.25. Hon’ble Supreme Court has already held in the case of Commissioner of Central Excise, Shillong vs. Wood Craft Products Ltd. [1995 (3) TMI 93 - SUPREME COURT OF INDIA] that HSN Explanatory Note can be used as a guide to resolve dispute relating to tariff classification and in this case, HSN Explanatory Notes as well as Board’s Circular clearly support the stand taken by the respondent. Moreover, lime is specifically mentioned under Chapter heading 28.25 and lime is general description and therefore, it can be said to cover ‘Burnt Lime’. - impugned order does not require any interference - Decided against Revenue.
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2015 (10) TMI 1835
Reversal of credit for use of inputs in generation of electricity - Imposition of penalty - Rule 15(2) of the Cenvat Credit Rules, 2004 - Captive consumption - Bagasse - Held that:- There was justification for the appellant to entertain the belief that it was outside the purview of Rule 6 and there was no requirement for reversal the cenvat credit. However, once the cenvat credit has been reversed along with interest, there was no requirement for the Central Excise department to proceed further for imposition of penalty, especially by invoking the provisions of Rule 15(2) of the Rules, which, in clear and unambiguous terms provides that in case of fraud, collusion, or wilful mis-statement, or suppression of facts with intent to evade payment of duty, the said provision can be invoked and not otherwise. The record reveals that suppression, misstatement etc., cannot be alleged against the appellant, since a genuine belief regarding non-maintenance of separate accounts was entertained by it. Admittedly, non-reversal of cenvat credit in the present case is not attributable to any fraud, collusion, mis-statement etc., and accordingly, provisions of Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 cannot be invoked for imposition of penalty on the appellant. - there was no justification for invoking the provisions of Rule 15(2) of the rules for imposition of penalty in the impugned order. - Therefore, the impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1834
Refund claim - Unjust enrichment - Held that:- Cenvat credit which was adjusted against the confirmed duty demand was in excess of the amount which was required to be adjusted towards payment of duty. We further find that the appellant is simply seeking restoration of credit which had been adjusted in excess. In the facts and circumstances of the case, we are of the view that restoration of Cenvat credit in the account of the appellant will only restore the position to the extent of credit which was not required to be adjusted. Thus, when viewed from the angle of continuous utilization of credit, we find that unjust enrichment is not invokable. - Decided in favour of assessee.
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2015 (10) TMI 1833
Denial of CENVAT Credit - Bogus invoices - Invoices received without actual receipt of goods - Held that:- No statement of the supplier with regard to the appellant have been recorded to say that supplier has not supplied goods to the appellant but supplied only invoices. Further no other investigation has been conducted with regard to the appellant by physical taking the stock etc., recording the statement of the supplier or the appellant themselves. In these circumstances, relying on the decision of the Hon’ble High Court of Punjab and Haryana in the case of Talson Mills Store I hold that demand is not sustainable as the High Court has found that revenue is required to hold an independent enquiry against the appellant and only thereafter could an order be passed. - Decided in favour of assessee.
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2015 (10) TMI 1832
Denial of exemption claim - Classification of goods - Held that:- For availing the exemption Notification Nos. 49/2003-C.E. and 50/2003-C.E., filing of the declaration in prescribed format to Assistant/Deputy Commissioner, with a copy to the Superintendent of Central Excise is mandatory and as the exemption is applicable only from the date of filing of the declaration, in our view, this condition for availing the exemption has been substantially complied with by sending the declaration to the jurisdictional Superintendent of Central Excise about which there is no dispute. The jurisdictional Superintendent could have passed to the Assistant Commissioner’s office and just because the copy of the declaration was not sent by the assessee to the jurisdictional Assistant Commissioner/Dy. Commissioner, the exemption cannot be denied. As regards the second objection that the Tariff Heading mentioned in the declaration is 8517 50 30 while there is no such Tariff heading, in our view this is a clerical mistake as there is no dispute about the description and nature of the product being manufactured and on the basis of the description, the product would be classifiable as “Data Processing Machine” under Heading No. 8474 which are covered by the exemption Notification No. 49 - 50/2003-C.E. Just on account of some clerical mistake in mentioning of the sub-heading, the benefit of the exemption notification cannot be denied. - Decided in favour of assessee.
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2015 (10) TMI 1831
Denial of CENVAT Credit - Held that:- The appellants are discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and imposed penalty for not paying the amount by cash from PLA. We find that the Hon’ble Gujarat High Court in the case of Indsur Global Ltd Vs Union of India - [2014 (12) TMI 585 - GUJARAT HIGH COURT] held that the portion “without utilizing the CENVAT Credit” of sub-rule (3A) of Rule 8 of Central Excise Rules, 2002, shall be rendered invalid.” - impugned order is not sustainable. The impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1830
Duty demand - CENVAT Credit - Demand of interest - Held that:- appellants were discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and imposed penalty for not paying the amount by cash from PLA. - In view of the decision of Hon’ble Gujarat High Court [2014 (12) TMI 585 - GUJARAT HIGH COURT], we find that the impugned order is not sustainable. The impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1829
Duty demand - CENVAT Credit - Demand of interest - Held that:- Appellants were engaged in the manufacture of Meter Gauge classifiable under Chapter 73 & 84 of Central Excise Tariff Act, 1985. The appellants were discharging duty on monthly basis under Rule 8 of Central Excise Rules, 2002. There was a delay in discharging of duty on monthly basis. The appellant paid duty partly from CENVAT account during the defaulted period. By the impugned order, the Adjudicating Authority disallowed the utilization of the amount from CENVAT account during the period from 05.07.2010 to 29.09.2010 in terms of provisions of Rule 8(3A) of Central Excise Rules, 2002 and confirmed the demand of duty along with interest and penalty partly for not paying the amount by cash from PLA. - portion “without utilizing the CENVAT Credit” of sub-rule (3A) of Rule 8 of Central Excise Rules, 2002, shall be rendered invalid.” - In view of the decision of Hon’ble Gujarat High Court [2014 (12) TMI 585 - GUJARAT HIGH COURT], we find that the impugned order is not sustainable. The impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1828
Duty demand - procedure as prescribed under Rule 6 of the Cenvat Credit Rules, 2002 not followed - Held that:- issue involved is covered by the amendment by Finance Act, 2010. In view of that, we set-aside the impugned order and appeal is allowed with consequential relief. - Decided in favour of assessee.
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2015 (10) TMI 1827
Exemption Notification No.48/2008-CE dated 2.9.2008 - clearances made for flood victims subject to fulfillment of certain conditions - Non maintenance of separate accounts - Held that:- Appellant was not availing the exemption regularly. The exemption in question, which is solely meant for flood victims, was availed in respect of one clearance only. In such a scenario, no assessee would keep separate cenvatable accounts in terms of Rule 6. On being pointed out by the Revenue, the appellant forgone their claim to the exemption notification and paid duty accordingly. Merely because the appellant did not pay the duty at the time of clearance, in my views, should not be adopted as a reason for confirmation of demand in terms of Rule 6(3) of CCR. The only consequence of non-payment of duty at the time of clearance of the goods would be confirmation of interest from that date till the date of payment of duty. Learned counsel agrees to pay such interest. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1826
Condonation of delay - Bar of limitation - Held that:- It is seen that the Clause (b) of Section 37C (1) of the Act provides that any decision or the order passed under this Act shall be served by tendering the order or by sending by Registered Post with Acknowledgement Due. In the present case, it is seen that the Panchnama dated 05.06.2008 that Central Excise officers tendered the order in person at the factory premises of the appellant company. But, the security informed that the factory is closed down. So, the said officer affixed a copy of the order at the factory gate, which is within the purview of the service of order or decision, order under Section 37C of Central Excise Act 1944. I find that this fact was not disputed by the applicant. - Supreme Court in the case of M/s Singh Enterprises Vs CCE Jamshedpur - [2007 (12) TMI 11 - SUPREME COURT OF INDIA] held that the Commissioner (Appeals) is not empowered to condone the delay beyond the prescribed period of limitation. - Decided against assessee.
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2015 (10) TMI 1824
Denial of CENVAT Credit - duty paying documents - Held that:- The main grievance of the Revenue is that the Bill of Entry was in the name of M/s. J.J. Polyplast, Daman who had surrendered the registration on 01.6.2005 and they have not issued the invoices. On perusal of the findings of the Commissioner (Appeals) as mentioned above, I find that there is no dispute that the Respondent availed CENVAT credit on the basis of the invoices issued by M/s. J.J. Polyplast, Bhiwandi a sister unit of M/s. J.J. Polyplast, Daman who was a registered during the material time. The Commissioner (Appeals) has clearly recorded that there is no dispute as regards the receipt and utilisation of the inputs in the final product. It is also seen that the Respondent has availed credit on the basis of proper Central Excise invoices and therefore, there is no reason to deny the CENVAT credit to the Respondent. - No reason to interfere with the order of Commissioner (Appeals) - Decided against Revenue.
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2015 (10) TMI 1823
Denial of CENVAT Credit - Invalid documents - Held that:- When the Tribunal categorically directed the Commissioner (Appeals) to verify the fact of taking credit on the basis of valid documents, then it is the duty of the Commissioner (Appeals) to verify the documents himself and he should not proceed on the basis of findings of the Adjudicating authority and upheld the Adjudication order dt.17.02.1999. - Commissioner (Appeals) to verify the fact of taking credit on the basis of valid documents as directed by the Tribunal in earlier order dt.21.09.2005. He would also consider the submissions of the appellant, in respect of imposition of penalty. The Commissioner (Appeals) is directed to decide the appeal as expeditiously as possible. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 1822
Denial of CENVAT Credit - Gardening and Housekeeping Services - Held that:- Maintenance of garden and cleanliness of factory is connected to their business activity of production and sale of final products. Learned AR for Revenue submits that the Tribunal in the case of CCE, Trichy vs. Sri Rama Vilas Service Limited - [2011 (4) TMI 520 - CESTAT, CHENNAI] disallowed the cenvat credit on gardening services. - decision of the Hon’ble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore vs. Millipore India Pvt. Limited - [2011 (4) TMI 1122 - KARNATAKA HIGH COURT ]. In that case, the Honble High Court held that concept of social responsibility and statutory obligation to maintain their factory in eco-friendly manner is also relevant and allowed the input service credit on landscaping of factory and garden. - Respectfully following the decision of the Hon’ble Karnataka High Court in the case of Millipore India Pvt. Limited (supra), the order for denial of cenvat credit on gardening and housekeeping services are set-aside - Decided in favour of assessee.
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2015 (10) TMI 1821
CENVAT Credit - Capital goods - Invocation of extended period of limitation - Held that:- cenvat credit was denied on the articles of Iron and Steel used in the construction of Plant, which can not be treated as capital goods. The Commissioner (Appeals) set-aside the demand on the extended period of limitation. It is seen that the Larger Bench of the Tribunal in the case of Vandana Global Limited vs. CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] has decided the issue in favour of the Revenue. Thus, it is apparent that there was conflicting view of the various benches on the issue. In this perspective, it may be considered that there can not be any suppression of facts with intent to evade payment of duty. Hence, the Commissioner (Appeals) has rightly dropped the demand of duty for the extended period of limitation. - Decided against Revenue.
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2015 (10) TMI 1820
Reversal of CENVAT Credit - Removal of Capital goods - Held that:- issue was decided by the Hon’ble Madras High Court in the case of CCE, Salem vs. Rogini Mill Limited - [2010 (10) TMI 424 - MADRAS HIGH COURT], which was followed by the Larger Bench of the Tribunal in the case of CCE, Hyderabad vs. Navodhaya Plastic Industries Limited - [2013 (12) TMI 82 - CESTAT CHENNAI ]. The Hon’ble Madras High Court in the case of Rogini Mill Limited (supra) held that in the case of removal of used capital goods, the depreciated value of such goods to be considered for reversing the cenvat credit availed thereon. - Impugned order is set aside - Matter remanded back - Decided in favour of Revenue.
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2015 (10) TMI 1819
Waiver of pre deposit - Demand of differential duty - Invocation of longer period of limitation - Valuation of goods - Held that:- Identical sets of facts and circumstances were considered by the Tribunal in the case of Commissioner of Central Excise, Hyderabad Vs. Innocorp Ltd. [2013 (9) TMI 382 - CESTAT BANGALORE] and it was held that the provisions of Rule 10A of the Central Excise Valuation Rules, 2000, have no applicability in such a scenario. The same fact was in another decision in the case of Ravi Kiran Plastics Pvt. Ltd. Vs. CCE & S.T., Vadodara [2014 (2) TMI 211 - CESTAT AHMEDABAD] - decisions were placed before the adjudicating authority, he has not followed the same by observing that the same are not applicable to the relevant issue without giving any reasons and discussing as to how the same are not applicable to the facts and circumstances of the present cases. - Stay granted.
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2015 (10) TMI 1818
Refund claim - Accumulated CENVAT Credit - Export of service - Held that:- Appellant should be given an opportunity to place these documents before the lower authorities for ascertaining the fact of export of goods during March 2006. Thereafter, it should be decided in the light of the said notification. - Impugned order is set aside - Matte remanded back - Decided in favour of assessee.
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2015 (10) TMI 1817
Classification of the coconut oil packed in less than 200 ml containers - Classification under Chapter 15 or under Chapter 33 - Held that:- Original adjudicating authority in para 16 of his order, admitted that the classification of coconut oil has been the subject matter of dispute in a number of cases and in all those cases the classification was held under Chapter Heading 1503. Tribunal in the case of Madhan Agro Industries (India) Pvt. Ltd. Vs. CCE, Salem [2008 (6) TMI 582 - CESTAT CHENNAI] as also in the case of Capital Technologies Ltd. & others Vs. CCE & ST, Tirupati Excise [2011 (5) TMI 901 - CESTAT BANGALORE] has held the coconut oil packed in less than 200 ml packs to be edible oil falling under Chapter 15. Further the Tribunal decision in the case of Capital Technologies stands affirmed by the Hon'ble Supreme Court, when the appeal filed by the Revenue was dismissed [2012 (1) TMI 179 - SUPREME COURT]. We also note that the said dispute was the subject matter of the decision of the Hon'ble High Court of Kerala in the case of Marico Ltd. Vs. Union of India vide their order [2009 (11) TMI 675 - KERALA HIGH COURT ], wherein it has been held that in the absence of any stay or reversal of the Tribunal's decisions laying down that coconut oil packed and sold in packets of capacity up to 200 ml are not liable to excise duty, Revenue cannot confirm duty against the petitioner. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1816
Pre-deposit of penalty amount by utilizing cenvat credit - Penalty under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - Held that:- It is axiomatic that Cenvat credit could be availed only for remittance of duty and interest and not for penalty. Since the appellant had remitted the disallowed component of Cenvat credit and the interest thereon by reversing from his Cenvat account and such reversal or debit to the Cenvat account cannot be utilised for remittance of penal liability under the Act, the obligation of the appellant to remit 7.5% of the penalty imposed by the impugned order, is unavoidable. - appellant shall remit the compulsory deposit in cash within four weeks - Decided against assessee.
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2015 (10) TMI 1815
Denial of CENVAT Credit - Whether the cenvat credit is available equal to Additional duty paid under Section 3 of the Customs Tariff Act, 1975 or equal to 50% of the Additional Duty leviable, when the supplier of the goods (100%) availed exemption of 50% of the duty payable in terms of Notification No. 2/95-CE dated 04.1.1995. - Held that:- Authorised Representative for the Revenue mentions that in the facts of the present case the Larger Bench decision is not applicable. In my considered view, it would be proper that the matter should be examined on the facts of the case, by the adjudicating authority in the light of Larger Bench decision, including the issue of demand is barred by limitation. - Impugned order is set-aside and matter is remanded to the adjudicating authority to decide afresh - Decided in favour of assessee.
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2015 (10) TMI 1814
Valuation of goods - Determination of assessable value - Held that:- It is seen that M/s Nilkamal is getting goods manufactured from other manufacturers also and identical disputes were raised at their end also. One of such cases came before the Tribunal's Delhi Bench and vide Stay Order Nos. 1960-1961/2012 dated 03.12.2012 passed in the case of M/s Punjab Telenet Cables Ltd., unconditional stay was granted. - appellant is entitled to unconditional stay. We order accordingly. We further note that the Commissioner (Appeals) has dismissed the appeal for non-compliance with the stay order passed by him directing to deposit the entire duty and a part of the penalty. As the appellants have been granted unconditional stay, we set aside the impugned order and remand the matter to the Commissioner (Appeals), for decision on merits without insisting on any pre-deposit. Appellant would be given an opportunity to draw attention of the Commissioner (Appeals) to the precedent decisions of the Tribunal. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 1813
Denial of CENVAT Credit - GTA Service - Held that:- Appellant failed to produce any evidence that the goods were delivered on FOR basis and therefore, they are not eligible to avail CENVAT Credit of G.T.A. services, and denial of CENVAT Credit is justified. In my considered view, it is not the case of imposition of penalty of equal amount of duty as there is no suppression of fact with intent to evade payment of duty etc. Further, there were contrary views of various Benches of the Tribunal. So, the imposition of penalty under Section 11AC of Central Excise Act 1944 is unwarranted. So, the quantum of penalty is liable to be reduced. - Decided partly in favour of assessee.
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2015 (10) TMI 1812
Denial of CENVAT Credit - whether the CENVAT Credit is to be allowed for the declared stock of Grey Man Made Fabrics (by considering it as input) as per Sr.No.1(c) of Table appended to the Notification No.35/2003-CE(NT), dt.10.04.2003 as amended or as per Sr.No.2 (b) (by considering it as finished goods in stock.) - Held that:- Commissioner (Appeals) following the decision of the Tribunal held that the dealer is introduced between the manufacturer and the processor, the nature of product as input cannot undergo any change, and it would cover under Sr.No.(c) of the said notification. - view was approved by the Hon’ble Gujarat High Court in the case of CCE Ahmedabad-I Vs Rajkamal Textile Traders - [2009 (2) TMI 476 - GUJARAT HIGH COURT ], and dismissed the appeal filed by the Revenue - No reason to interfere in the order of the Commissioner (Appeals). - Decided against Revenue.
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2015 (10) TMI 1811
Waiver of pre deposit - Mandatory pre deposit - Held that:- Appellant company filed appeal alongwith the stay application against the impugned order, which is unsigned by the appellant company. The Registry of the Tribunal issued the defect notice directing the appellant company to remove the defects and no step was taken by them. Apart from that, as per amended provisions of Section 35F of Central Excise Act 1944, the Tribunal may entertain the appeal subject to deposit of 10% of duty or penalty. - Tribunal shall not entertain any appeal unless the appellant has deposited 10% of the duty, in case by duty or duty and penalty are in dispute, or penalty or such penalty is in dispute on decision or appeal against. It is noted that as per the defect notice of the registry, the appellant failed to produce the proof of mandatory deposit in terms of Section 35F of the Central Excise Act 1944 as amended. So, Tribunal cannot entertain the appeal. The appeal is dismissed as not maintainable - Decided against assessee.
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2015 (10) TMI 1810
Duty demand - violation of Rule 8 (3A) of the Central Excise Rules, 2002 - Held that:- Respondent failed to discharge duty in due time under Rule 8 of the Central Excise Rules 2002. It is seen that the respondent discharged the duty during defaulted period partly through cenvat account. The Adjudicating Authority demanded the duty which was paid through cenvat account for violation of Rule 8 (3A) of the Central Excise Rules, 2002. The Commissioner (Appeals) allowed appeal filed by the respondents. It is seen that the issue is covered in favour of the respondents as per the decision of the Hon’ble High Court, Gujarat in the case of Indsur Global Ltd., vs Union of India - [2014 (12) TMI 585 - GUJARAT HIGH COURT]. - No merit in the appeal filed by the Revenue - Decided against Revenue.
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2015 (10) TMI 1809
Denial of refund claim - unjust enrichment - manufacture - processing of Wood Timber - Held that:- balance amount of refund was rejected on the ground that the appellant failed to produce documentary evidence or other evidence to establish that the incidence of duty had not been passed on by them to their customers/buyers. The Commissioner (appeal) had given detailed findings on his issue. In the grounds of appeal, it is contended by the appellant that the refund can be sanctioned to Govt of Gujarat Dept, on a simple indemnity as provided in the Treasury Rules. It is further contended that the Govt of Gujarat cannot be considered to be enriched, as amount of duty is paid on Timber was sold to jails and other Govt. Depts. - There is no provision in the Central Excise law that the state government authorities would be are outside of the principles of unjust enrichment. - Decided against assessee.
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2015 (10) TMI 1808
Recovery of CENVAT Credit - Imposition of penalty - Held that:- Show Cause Notice dtd 3.7.2007 was issued proposing demand of Cenvat Credit for the period from October 2003 to May 2004 invoking proviso to Section 11A(1) of the Central Excise Act 1944. Commissioner (Appeals) upheld demand of duty for the extended period of limitation. Then the findings of the Commissioner (Appeals), that the respondent is not part of fraud is contrary and mis-conceived, in so far, as the demand of Cenvat Credit for the extended period would be invalid. But, the Commissioner (Appeals) upheld the demand for the extended period and set aside penalty under Section 11AC, as there was no fault on the part of the appellant, are contradictory and cannot be sustained. - Impugned order set aside - Matter remanded back - Decided in favour of Revenue.
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2015 (10) TMI 1807
Denial of exemption claim - Captive consumption - Held that:- By Section 111 of the Finance Act, 2014, Notification No. 24/2012-C.E., dated 8-5-2012 has been retrospectively amended w.e.f. 17-3-2012 and the amended notification exempts not only the Polyester Staple Fibre and Polyester Filament Yarn but also the Polyester Tow manufactured and captively consumed within the factory of production from plastic scrap or plastic waste/polyester waste including waste PET bottles. Since the duty demand in this case is for the period 8-5-2012 to March, 2013, the entire duty demand is covered by the retrospective amendment to Notification No. 24/2012-C.E., dated 8-5-2012 by Section 111 of the Finance Act, 2014. - impugned order confirming the duty demand along with interest and imposition of penalty would not survive. The same is set aside. - Decided in favour of assessee.
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2015 (10) TMI 1806
Recovery of duty - Attachment of property - Section 11 - Held that:- reliance placed by the Revenue on an undertaking given by the Respondent in the year 2001 was not properly appreciated by the first appellate authority under which Respondent has clearly agreed to pay the dues pertaining to M/s. Namokar Processors as and when the issue is decided in favour of the department. There is nothing in this undertaking to suggest that liabilities arising after undertaking will be paid by the Respondent. This aspect has to be examined in the latest judgment of Allahabad High Court in the case of Rana Girders Limited vs. UOI (supra) which was also not available before the first appellate authority while deciding the issue. In the interest of justice, this matter is thus required to be remanded back to the first appellate authority for deciding the issue in de-novo proceedings. Revenue should bring to the notice of the first appellate authority the documents placed before the Bench including the latest judgment of the Allahabad High Court. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 1805
Refund claim of amount paid as interest - Denial on the ground that there is no enabling legal provision for grant of refund of interest and in the absence of such provisions no refund claim for interest can be considered - Held that:- No doubt there is no provision in the Section 11B of Central Excise Act 1944 specifically providing for refund of interest paid by an assessee. However I find taking note of the lack of provision in Section 11B for such refund, this Tribunal in the case of Mothersons Sumi Systems Ltd. [2006 (8) TMI 75 - CESTAT, NEW DELHI], took a view that the amount has to be refunded. - the appellant is eligible for the refund. The fact remains that whether unjust enrichment would be attracted and whether the appellants have crossed the threshold has not been examined or considered by both the lower authorities. Therefore I consider it appropriate that matter should be remanded for the limited purpose of examination of applicability of unjust enrichment. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority - Decided in favour of assessee.
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2015 (10) TMI 1804
Clandestine removal of goods - Imposition of interest and penalty - Held that:- The proprietor had admitted the clearance of new transformers without payment of duty and in fact he had given three statements in all of which he had not taken the defence that they had also undertaken the activity of repair and supply. The defence has come up only after four years of the investigation commencement. It is seen that detailed investigation has been conducted, statements have been recorded, documents had been recovered to support the observations and the case of the department. I do not find any merit in the appeals filed by the appellants. However there is also a claim that the amount realized by them should be treated as cum-tax amount and I find this is a claim which is justified. - Matter remanded back - Decided partly in favour of assessee.
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2015 (10) TMI 1803
Cancellation of registration certificate - Held that:- From the Section 37C the order is to be sent to the assessee through the registered post. In this case admittedly order was not communicated through registered post or any other method prescribed under Section 37C of the Central Excise Act, 1944. Therefore I hold that communication to the appellant for cancellation of registration certificate dated 30-4-2010 as defective. - In these circumstances, I hold that appellant has filed appeal before ld. Commissioner (A) within time. Therefore impugned order is set aside. - Matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 1802
Transfer of credit due to change in ownership - Rule 10 of CCR - denial of Cenvat Credit lying unutilized - allegation is that the appellant has taken the credit without permission - Held that:- As per rule 10 (3) of the Cenvat Credit Rules 2004 there is no requirement to take prior permission to take Cenvat Credit from the concerned authorities but credit is available to the assessee on being satisfied by the authorities that credit has been taken correctly. As the appellant has taken the credit and informed to the department they filed the ER return regularly and same has been accepted by the department, therefore question of taking any permission does not arise. - as held by the tribunal in the case the Om Glass Works Pvt. Ltd. (2012 (9) TMI 530 - CESTAT, NEW DELHI), I hold that Cenvat Credit is available to the appellant. - Decided in favour of assessee.
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2015 (10) TMI 1801
Waive of pre deposit - Denial of CENVAT Credit - whether the applicant is eligible to avail CENVAT Credit on the Service Tax paid on sales commission - Held that:- Prima facie, the applicant had not pleaded any material on the plea of sales promotion. However, we find force in the contention of the ld.Advocate in respect of the limitation. On query from the bench, the ld.Advocate fairly submits that he is unable to quantify the demand for the normal period of limitation. At this stage, ld.A.R. for the Revenue submits that after taking into the average figure of the demand, it would come about to ₹ 19 lakhs for normal period. After considering the submissions made by both sides, we find that the decision of the Hon'ble Gujarat High Court [2013 (1) TMI 304 - GUJARAT HIGH COURT], prima facie, is applicable in the present case. The submission of the ld.Advocate on the sales promotion would be examined on the basis of the material at the time of the hearing of the appeal. - Partial stay granted.
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2015 (10) TMI 1800
Area Based exemption - Denial of benefit of exemption Notification No. 50/03-CE dated 10/06/03 w.e.f. 15/03/10 - Held that:- Appellants factory is located at Khasra No. 177 and 288/1 in Village Sarvarkheda of Tehsil Kashipur of Distt. Udham Singh Nagar. The Department denied the exemption on the ground that in the respective entry in the Notification, there is no village named Sarvarkheda and Khasra No. 288/1 also does not figure and instead there is Khasra No. 288/A. However, it is seen that the exemption Notification No. 50/03-CE has been amended by Notification No. 7/14-CE and against Sl. No. 28 of the original notification in column 3, for the entry Sakharkheda the entry Sarverkheda has been substituted and similarly against Sl. No. 28 in the entry in column 4, for the figures and letters 285A and 288A, the figures and symbols 285/1 and 288/1 have been substituted. In view of this, there is no ground for denial for exemption, as the appellants unit is located in Village Sarverkheda at Khasra No. 177 and 288/1 and both the Khasra numbers are figuring in the exemption notification. The impugned order is, therefore, is not sustainable. The same is set aside. - Decided in favour of assessee.
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2015 (10) TMI 1799
Exciability of product - whether the product namely “various namkeens” were liable to duty during the period 2-6-1998 to 17-7-1998 (46 days) - Held that:- As far as the leviability of duty on the impugned goods during the period 2-6-1998 to 17-7-1998 (both the days inclusive) is concerned, there is no ambiguity in this regard. Duty was imposed vide Notification No. 5/98-C.E., dated 2-6-1998 and it was withdrawn only on 18-7-1998. Therefore, during the intervening period, duty was obviously leviable. However I take note of the fact that this levy was introduced for the first time and it indeed caused protests of a magnitude that the Minister of Finance himself gave a public statement which was published in Rajasthan Patrika. Clearly, it gave an impression that the impugned levy was being postponed and it indeed was rescinded soon. The appellants provided figures promptly when asked by the department and the department issued the show cause notice more than one year and four months after the supply of those figures. All these factors lend support to the appellants’ contention that they had no intention to evade and did not pay duty as it was widely believed that the levy was going to be withdrawn. - impugned demand is hit by time-bar. - Decided in favour of assessee.
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2015 (10) TMI 1798
Denial of CENVAT Credit - removal of crates and bottles - Held that:- Admittedly, the credit availed by the respondent on receipt of the new bottles was utilized by them, by using the said inputs, for payment of duty on their final product. The bottles and crates, were not removed as such, at that point of time and stand utilized by the respondent, thus satisfying the provisions of Cenvat credit Rules. The entire situation, at that point of time, became a clean slate. - On subsequent receipt of old used crates, no credit was availed and as such the question of reversing any credit does not arise. The Appellant Authority has rightly held that the provisions of Rule 3(4) of Cenvat Credit Rules are not applicable in the present case. - Decided against Revenue.
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2015 (10) TMI 1797
Denial of CENVAT Credit - Trading activity - Held that:- appellants have a strong case on limitation. This is because, if the appellants could have been aware of the decision of the Tribunal contradicting the Commissioners view, we have to hold that the Commissioner (Appeals) also could have been aware of the Tribunals decision. The very fact that an officer at the level of Commissioner in the department could take a view that credit is admissible, it would be difficult to take a view that such availment of Cenvat credit by the assessee has to be held as wrong availment with intention to evade payment of service tax. In view of above discussions, requirement of pre-deposit is waived treating the amount already deposited as sufficient for the purpose of hearing the appeal and stay against recovery is granted during pendency of the appeal. - Stay granted.
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2015 (10) TMI 1796
Waiver of pre deposit - Duty demand - compounded levy scheme - Held that:- Case of the appellant is that the duty was paid on the basis of actual production as they never opted for compounded levy scheme. That for the period under closure no duty can be demanded even under compounded levy as per the case law of Gayatri Iron Industries vs. CCE Lucknow (2012 (2) TMI 441 - CESTAT NEW DELHI). Learned AR could not bring any documentary evidence to the notice of the bench that such a declaration was in fact filed by the appellant except to a mention made in the OIO passed by the Adjudicating authority. Appellant has received information through RTI to the effect that no such declaration is available with the department. In view of the facts available on record and the relied upon case law, appellant has made out a prima facie case for complete waiver of the confirmed demands and penalties - Stay granted.
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2015 (10) TMI 1795
Waiver of pre deposit - Penalty u/s 11AC - Held that:- Chassis are supplied by the appellant’s customers, who are themselves not the manufacturer of the chassis. Such customers are like State Transport Corporation or any other private customers. The appellant undertook the same process of body building on the said chassis and claimed the classification of the same under Heading No. 87.04, as motor vehicles for transportation of the goods. Inasmuch as there is Notification No. 6/2006-C.E., dated 1-3-2006 granting exemption to motor vehicles falling under Heading No. 87.04, the appellant claimed the benefit of the same. It may not be out of place to mention here that the exemption as available in terms of the said notification is not applicable to motor vehicles manufactured on the chassis supplied by the chassis manufacturers inasmuch as the same are expressly excluded from the benefit of the notification in terms of the condition-9 of the notification in question. - as in terms of the said Chapter Note-5 of Chapter 87, body building activity would amount to manufacture of motor vehicles, which in the instant case, are classifiable under Heading No. 87.04, it has to be held that notification in question is available to the assessee. - appellant has good prima facie case in its favour - Stay granted.
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2015 (10) TMI 1794
Denial of abatement claim - Closure of factory - Held that:- there is no dispute about the appellant s entitlement to the abatement and Revenue s only objection is as regards the procedural violation. We find that an identical issue was the subject matter of the Tribunal s decision in the case of Shree Flavours Pvt. Ltd. Vs. CCE, Delhi-IV reported in [2014 (4) TMI 417 - CESTAT NEW DELHI], wherein by taking note of the earlier decision of the Tribunal in the case of Kaipan Pan Masala Pvt. Ltd. [2013 (1) TMI 356 - CESTAT, NEW DELHI], it was held that non-deposit of the duty and subsequent non-claiming of the abatement in violation of the procedure prescribed under the said Rules would not result in denial of substantive benefit to the appellant and the only consequence would be confirmation of interest. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1793
Denial of CENVAT Credit - insurance service of Employee Personal/Group Insurance premium - whether the CENVAT Credit can be availed on Service Tax paid on premium of Employees Personal/Group Insurance Service. - Held that:- there is nexus in expenses for Group Insurance Scheme for workers. I find that the issue is squarely covered by the decision of Hon'ble Bombay High Court in the case of Commissioner of Central Excise, Nagpur Vs. Ultratech Cement Ltd. - [2010 (10) TMI 13 - BOMBAY HIGH COURT ], wherein it was held that the services having nexus or integral connection with the manufacture of final product as well as the business of manufacture of final product or providing services would qualify to be input service under Rule 2(1) of the Cenvat Credit Rules, 2004. Staff insurance forms part of manufacturing cost also under CAS-4 standard. Accordingly, following the ratio of the above cited decision, I set aside the impugned order - Decided in favour of assessee.
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2015 (10) TMI 1792
Denial of CENVAT Credit - Inward Transportation Service - Held that:- There is no dispute on account of availment of CENVAT credit on inputs. When there is no dispute regarding receipt of inputs, therefore, whatever transportation has been paid by the appellant on Inward Transportation Service is entitled for input service credit. Further, the Measurement Tolerance is on account of receipt of inputs and supply of finished goods. In these terms, it cannot be said the appellant has received the input in short quantity. Therefore, service tax on Inward Transportation is fully allowable as input service. - appellant has rightly taken the CENVAT credit on input service on Inward Transportation Service. - Decided in favour of assessee.
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2015 (10) TMI 1791
Waiver of pre deposit - benefit of Notification No. 5/98-C.E. and 5/99-C.E. - Held that:- One condition attached to the notification is production of certificate from Apex bodies such as Handloom and Cooperative Societies, National Handloom Development Corpn., as the case may be to the effect that the yarn has to be used on handloom. Admittedly such certificate was placed on record. As per the appellant they are not concerned as to whether such yarn, ordered by the Apex Handloom Cooperative Society, is actually spuned on handloom or not, or is actually delivered to the assessee in question. We prima facie agree with the above contention. There is nothing in the said notification to place any onus on the manufacturer to find out the use of such yarn. The only condition of production of certificate stand fulfilled by the appellant. As such, we are of the prima facie view that the appellant has a good case in its favour. - Stay granted.
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2015 (10) TMI 1790
Benefit of Notification No. 30/2004-C.E., dated 1-3-2004 - Non-availment of Cenvat credit - held that:- at the time of clearance of the said exempted final products, the appellant have paid 6% of the amount of the value of the said exempted products in terms of the provisions of Rule 6(3)(i). In terms of the provisions of Rule 6(3D), the reversal of an amount in terms of the Rule 6(3) shall be deemed to be non-availment of Cenvat credit for the purpose of exemption notification, wherein any exemption is granted on the condition that no Cenvat credit of inputs and input services shall be taken. Inasmuch as the appellant have reversed 6% of the amount in terms of the provisions of Rule 6(3), it has to be held as if no Cenvat credit was ever taken by the appellant in terms of the provisions of Rule 6(3D). In such a scenario, it can be safely concluded that the appellant have fulfilled the conditions of notification in question. - appellant has admittedly reversed the amount in terms of Rule 6(3), it has to be deemed that no credit was taken in which case the condition of notification is held to have been fulfilled - Stay granted.
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2015 (10) TMI 1789
Demand of differential Cenvat credit - shortage of raw material - Held that:- adjudicating authority has confirmed the demand based upon the calculation of consumption of H.R. sheets for manufacturing of gas cylinders. - there is no allegation nor is there any finding of the adjudicating authority that the presumptuous calculation of the shortage of H.R. sheets, was removed from the factory premises of the appellant or there was clandestine manufacture and removal of finished goods i.e. gas cylinders. In our considered view, in the absence of any contrary evidence, confirmation of demand on presumptions and assumptions is incorrect and the impugned order is to be held as correct and legal. - impugned order does not suffer from any infirmity and does not call for any interference. - Decided against Revenue.
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2015 (10) TMI 1788
Demand of excess availed CENVAT credit -Imposition of penalty - Held that:- in respect of two demands, suppression has been invoked and submits that appellant is a big manufacturer registered with LTU and paying crores of duty in revenue and would not be resorting to avail excess CENVAT credit running into a few lakhs and therefore even if credit has been availed more than what was availed it was basically a calculation mistake or an error of understanding of the provisions and therefore mandatory penalty could not have been imposed. He agrees that appellant has no problem in paying the differential amount if on remand it is found that CENVAT credit taken as per the formula is more than the CVD payable. I find myself in agreement with the submission that what is involved is application of formula and the very fact that disputes have arisen in respect of this formula would show that there can be mistakes that may be made by the employees who take credit. When I look at the amount involved in three appeals and the size of the appellant, the submissions are acceptable. In view of the fact that appellant has volunteered to pay the amount of differential credit if it is found that they are liable to pay as per the decision taken in these appeals, the penalties imposed on the appellant are set aside. - Decided partly in favour of assessee.
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2015 (10) TMI 1787
Denial of CENVAT Credit - Manufacture - activity of printed bottles does - Held that:- Admitted facts are that the final products have been cleared from the appellants’ factory prior to 3-8-1998 to their godown. It is also an admitted fact that these goods have been cleared from their godown on payment of duty which was not required to pay by the appellants. In these circumstances, relying on the decision in the case of Ajinkya Enterprises (2012 (7) TMI 141 - BOMBAY HIGH COURT) we are of the considered view that as duty has been paid by the appellants on clearance of these final products which was not required to pay shall amount to reversal of Cenvat credit which sought to deny by way of impugned order. In these circumstances, we hold that the demand confirmed by way of impugned order is not sustainable. Accordingly, levy of interest and penalties are also not sustainable - Decided in favour of assessee.
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2015 (10) TMI 1786
Rectification of mistake - Revenue pleads that the Committee of Commissioners has applied their mind and have decided to file appeal before the Tribunal. As such, it is their contention that the provisions of Section 35(B)(2) were duly complied with. - Held that:- noting by C.C.E. Delhi-I is suggestion to C.C.E.-Delhi-II for filing an appeal before the Tribunal and the noting by C.C.E.-Delhi-II are agreeing to that suggestion. It also stands observed by C.C.E.-II that the authorization to file appeal is with C.C.E.-Delhi-I. There is no formal order passed by the Committee of Commissioners directing any officer, to file appeal against the order of Commissioner (Appeals) before Tribunal. As already noted, the requirement of Section 35(B)(2) is direction by Committee of Commissioners to any Central Excise Officer to file an appeal. Such directions, admittedly, have to be under the joint signatures of both the member (Commissioners) of the Committee. Suggestion by one Commissioner and acceptance by other Commissioners cannot be called to be an order signed by both the Commissioners directing any Central Excise Officer to file an appeal. As such, we find no mistake in the said order of the Tribunal, requiring any rectification. - Rectification denied.
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2015 (10) TMI 1785
Duty demand - Shortage of goods - Held that:- It is a fact on record the goods have been weighed through two different methods of weighment : (a) through weighbridge at the time of despatch from the factory & (b) at the time of exportation through mother vessel through draft survey. It is accepted principle that if weighment is done on two different weighbridge, difference may occur. In these circumstances, 1% variation in weighment is acceptable as claimed by the appellant as compared to shortage found in 1.9% and 4.09% respectively in the consignments exported. Therefore, I find that the claim of the appellant is acceptable for benefit of 1% shortage of weight in the finished goods. - Impugned order is set aside - Decided in favour of assessee.
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2015 (10) TMI 1784
Waiver of pre deposit - Eligibility of benefit of Notification No.67/95-CE dated 16.03.1995 - Captive consumption - Held that:- observations of Hon’ ble Supreme Court in Tata Iron's case [2003 (4) TMI 104 - SUPREME COURT OF INDIA] was in the context of the issue whether raising of coal would result in production and manufacture under Section 6 of The Coal Mines Act; and secondly the changing Section 3 of Central Excise Act, 1944, provides that excise duty is levied and collected on goods produced or manufactured in the country and consequently duty is levied on coal w.e.f. 01.03.2011; besides in other ancillary Rules like CENVAT Credit Rules etc. the words produced or manufactured has been used in juxtaposition. Therefore, at this stage it is difficult to accept that since coal are produced in mines and are not manufactured, therefore, the benefit of Notification No.67/95-CE dtd.16.03.1995 is not admissible, when all other conditions laid down under the said Notification, including the final product being dutiable, are satisfied. In these circumstances, we find that the Applicant could able to make out a prima facie case for waiver of pre-deposit of dues adjudged, accordingly all dues adjudged is waived and its recovery stayed during the pendency of the Appeal. - Stay granted.
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2015 (10) TMI 1783
Export of goods - remittance for the goods exported has not been received and as the export proceeds have not been received, the export cannot be treated as exports - Held that:- Rule 19 of the Central Excise Rules, 2002, permits export of the goods under bond/LUT without payment of duty, subject to following the procedure and conditions, as may be prescribed by the notification issued by the Government in this regard. Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19(3) prescribes the conditions and the procedure for this purpose and in this notification, there is no condition that in respect of the goods exported, the export proceeds must be received within any stipulated period. There is no such condition even in the Rule. In view of this, the condition regarding receipt of export proceeds cannot be imposed to demand duty foregone in respect of the goods cleared for export under bond/LUT. The duty on the goods can be demanded only if the goods have not been exported out of India within the stipulated period but there is no such allegation. In view of this, I do not find any infirmity in the impugned order - Decided against Revenue.
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2015 (10) TMI 1782
Denial of CENVAT Credit - Job work - inputs and capital goods used in the manufacture of final products cleared without payment of duty, after job work - Held that:- issue involved in this case is no longer res integra as the same is decided in favour of the assessee by Larger Bench of this tribunal in the case of Sterlite Industries (I) Ltd. (2004 (12) TMI 108 - CESTAT, MUMBAI), wherein it was held that inputs used in the manufacture of final products cleared without payment of duty, after job work, cannot be considered as used in exempted goods and job workers are entitled to input credit. Therefore, in the light of the Larger Bench's decision of the Tribunal in the case of Sterlite Industries Ltd. (supra), I hold that the appellant is eligible to avail CENVAT Credit credit on the inputs used in the manufacture of final products cleared without payment of duty. Accordingly, the impugned orders are set aside - Decided in favour of assessee.
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2015 (10) TMI 1781
Duty demand - Respondent-assessee submitted that the waste and scrap of HDPE bags has not arisen during the manufacturing process and, therefore, there cannot be any duty liability on removal of such waste and scrap. The learned counsel further submitted that the PP wrapper is not used for packing the final product and is an outer packing in which HDPE bags are received and that the cement is packed in HDPE bags. The learned counsel has also submitted that the demand of duty on grinding media balls is also not sustainable and that the grinding media is used in ball mill or grinding mills in the manufacture of cement and is eligible for credit as input. The learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of CCE v. West Coast Industrial Gases Ltd. reported in [2003 (4) TMI 110 - SUPREME COURT OF INDIA]. - Held that:- issue is covered by the decision of the Hon’ble Supreme Court in the case of West Coast Industrial Gases Ltd. (supra) read with Board’s Circular No. 721/37/2003-CX., dated 6-6-2003 - Decided against Revenue.
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2015 (10) TMI 1780
Area based exemption - condition of commencement of commercial production not later than 31-3-2010 - Benefit of Notification No. 50/2003-C.E., dated 10-6-2003 - Held that:- a new cement unit can be said to have commenced commercial production (specially in the context of Notification No. 50/2003-C.E.) only and only when it commenced commercial production of cement because a cement unit is set-up for producing cement. The commercial production by the clinker plant by this new cement unit thus does not mean commercial production by the cement unit which is meant/required to commercially produce cement. Further commercial production of clinker by the clinker plant of this cement unit is not germane to the issue also because clinker figures in the negative list (Annexure-I referred to earlier) and therefore provisions of Notification No. 50/2003 do not even apply to the commercial production by clinker plant of new cement unit. In the case of CCE, Rajkot v. Meena Agency Pvt. Ltd. (2009 (8) TMI 979 - CESTAT AHMEDABAD) cited by the appellants, the assessee had already been availing of the exemption under Notification No. 50/2003-C.E. and had only added some new products. Similar situation existed in case of CCE, Rajkot v. Value Packaging (2008 (8) TMI 129 - CESTAT AHEMDABAD). The facts and circumstances in the case of CCE, Rajkot v. Indian Steel Corporation Ltd. (2008 (8) TMI 630 - CESTAT, AHMEDABAD) are also materially different from those obtaining in the case at hand. In that case the entire plant and machinery had been installed before the cut off date and plain corrugated sheets were also manufactured before the cut off date. - Thus none of these judgments come to the appellants’ aid. - Decided against assessee.
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2015 (10) TMI 1779
Valuation - Determination of assessable value - Inclusion of cost of additional and secondary inspections - Held that:- sale of “Inserts” was to Railways or to others on behalf of Railways and inspection by RITES was a necessary condition of sale. It was not in the nature of secondary or optional inspection and therefore the Commissioner (Appeals) was not right in holding the inspection charges to be not includible in the assessable value on that ground. As a matter of fact, the said goods could not be sold without the said inspection by RITES and therefore cost of inspection is clearly includible in the assessable value under Section 4 of the Central Excise Act, 1944. The need for an elaborate discussion on this issue is obviated in the wake of the CESTAT judgment in the case of Hindustan Gas & Industries Ltd. (1995 (3) TMI 276 - CEGAT, NEW DELHI) which covers an identical issue in identical circumstances. - This aspect, the absence of optionality and the existence of every buyer insisting upon tests by RITES do not appear to have been present in Hindustan Development Corporation v. C.C.E. In that case, the Tribunal has recorded a finding of the fact that the inspection charges were paid, not by the manufacturer, but incurred by the Railways, the only buyer. The ratio of that judgment, and of the judgment in Shree Pipes [1991 (12) TMI 146 - CEGAT, NEW DELHI ], would not apply to the facts before us - Decided in favour of Revenue.
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2015 (10) TMI 1778
Benefit of Notification No. 9/2003-C.E., dated 1-3-2003 - DTA clearance versus export - payment of duty at the concessional rate of 9.6% - Held that:- as the Notification No. 9/2003-C.E., is clearly not applicable, even as per the above-quoted para of the Central Excise Manual, the rate of duty on the impugned exported goods cannot be in accordance with the Notification No. 9/2003-C.E., as that Notification is applicable to the specified goods cleared into domestic tariff area. However, we agree with the contention of the appellants that they have paid the duty as per the said notification believing it to be applicable and in any case the duty paid was refundable to them and therefore, they could not have had an intention to evade any duty - Decided in favour of Revenue.
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2015 (10) TMI 1777
Classification of Ruszyme G - plant growth regulator or bio-fertilizer - Classification under tariff Heading 3808.20 or under heading 31.01 - Held that:- It is seen that the chemical examiner has not conducted any tests and has given an opinion based on appellants’ literature. We find that for similar product ‘plantozyme’ (also containing cytokinin) CESTAT in case of Leeds Kem (2000 (9) TMI 168 - CEGAT, COURT NO. III, NEW DELHI) had considered the issue of classification in great detail and held that the product is a biofertilizers and mere presence of small amounts of cytokinin would not detract from its character of bio fertilizer classifiable under Heading 31.01’ and not under Heading 38.08. - appellants had not cleared the goods clandestinely and claimed a classification they thought was appropriate and therefore, the allegation of willful misstatement/suppression is not sustainable merely because Revenue considered that classification inappropriate - Decided in favour of assessee.
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CST, VAT & Sales Tax
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2015 (10) TMI 1847
Condonation of delay - Delay of 761 days - Held that:- There is no denying the fact that the appellant has placed sufficient material on record before this Court in the form of medical treatment file of his daughter, Ms.Ritika Singla, aged around 26 years. The treatment started in the month of June, 2011 and the MRI report was prepared at Bangalore. Other materials have also been placed on record to show that she had been treated in various hospitals at New Delhi, including Sir Ganga Ram Hospital, Dr.Doda's Diagnostics & Healthcare and Medanta Hospital at Gurgaon. A perusal of the said record would go on to show that the patient was suffering from complication of blood flow in the femoral veins which had got compressed. The said fact was never specifically denied or controverted in any manner by the respondent-authorities and it is not that the authorities came to a different conclusion that the certificates issued were incorrect and were only created for making out a sufficient cause. The illness was also of the period after the order was passed in March, 2011 and allegedly communicated in June, 2011. Application was very specific and the delay was sought to be condoned on the ground of illness of his married daughter who had been treated at various hospitals all over the country and had been suffering from blood clot cancer disease. - Tribunal was not justified in not allowing the application for condonation of delay and the reasoning given to dismiss the appeal, suffered from perversity - Delay condoned.
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2015 (10) TMI 1846
Imposition of penalty - Rejection of 'C' forms - Held that:- Deputy Excise and Taxation Commissioner (Appeals), UT, Chandigarh upheld the penalty and interest order. However, before the Tribunal, the appellant only agitated against the penalty. The Tribunal vide order dated 1.10.2014, Annexure A.5 held that since 'C' Forms were not genuine, the penalty was imposed in accordance with the rules by the assessing authority and dismissed the appeal. Learned counsel for the appellant has not referred to any cogent and convincing evidence or material on record to controvert the findings recorded by the authorities below. No explanation much less satisfactory explanation was given by the learned counsel for the appellant for submitting non-genuine 'C' Forms. The proposition of law propounded in the judgments cited by the learned counsel for the appellant is well recognized, but they being based on individual fact situation involved therein do not come to the rescue of the appellant keeping in view the facts and circumstances of the present case. Consequently, the appellant cannot derive any advantage from the said decisions. - Decided against assessee.
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