Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
October 3, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Authorization of retention of seizure of the books of account, laptop and CDs etc. u/s 133A (3)(ia) – authorization upheld - HC
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Provision for future liabilities (expenses) - whether allowable - mercantile basis of accounting - held yes - HC
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Addition on account of suspicion - Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. - HC
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Whether levy of penalty u/S 271(1)(c) of the Income Tax Act is automatic – Imposition of penalty is not automatic. - HC
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Competency of ITAT to dismiss the appeal for want of prosecution – Income Tax Appellate Tribunal is not competent to dismiss the appeal for want of prosecution - HC
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Return of seized money - section 132A - the seized amount should not be kept idle as “dead investment“. - order of release of seized money subject to conditions justified - HC
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Tax effect - Maintainability of appeal in view of the CBDT Circular/ Instruction No.5 of 2008 - the tax will not include any interest thereon, except where chargeability of interest itself is in dispute.e - HC
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Reassessment - Notice u/s 148 for making additions u/s 41(1) -There was no nexus between reasons recorded in formation of belief from the facts emerging in the case, the jurisdiction for framing reassessment under Section 147 - HC
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Revision u/s 263 - ITAT perpetuated the error by agreeing with the views expressed by the Revisional Authority that transport subsidy was not entitled to be deducted in terms of the provisions of Section 80IA - HC
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Block assessment - The requirement of notice under Section 143 (2) cannot be dispensed with - HC
Customs
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Disciplinary proceedings against the customs officer (Inspector) - delay in the proceedings - decided in favor of officer - HC
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Attachment and Recovery of Customs duties - Scope of the Definition “Defaulter” - Whether, for dues of the “defaulter“, the appellants, i.e; wife and children of the defaulter, were entitled to be proceeded against - held no - HC
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Import of Construction Sand - The only case of the Customs Department for detaining the consignment was for want of 'Plant Quarantine Certificate' - Construction Sand to be released subject to conditions - HC
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Refund of provisional assessed duty deposited under protest - period of limitation - Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. - HC
Corporate Law
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Though the Company Law Board was entitled to decide the validity of the transfer, despite granting leave to the parties to go to the Civil Court, it should not have decided the same, without impleading the appellant as a party. - HC
Service Tax
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Recovery - ST VCES 2013 - The object of the Service Tax Voluntary Compliance Encouragement Scheme, 2013 may be defeated, if the recovery is allowed to proceed - HC
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Waiver of Penalty u/s 80 - Whether ignorance of law can be a reasonable cause for allowing benefit of waiving penalties under Section 80 of the Finance Act, 1994 - waiver of penalty confirmed - HC
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Demand based on reconciliation of ST returns with the balance sheet - stay granted - AT
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Classification of service - canvassing air cargo - Business Auxiliary Service or not - H applicant to make a pre-deposit of 50% of the tax demanded - AT
Central Excise
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Damaged Inputs by Fire - Whether inputs damaged in fire could be considered as inputs not used in the manufacture of final products and accordingly duty involved on such inputs liable to be recovered - revenue's appeal dismissed - HC
Case Laws:
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Income Tax
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2013 (10) TMI 85
Addition with regard to sundry credit - Burden to prove the identity of creditors, their creditworthiness and genuineness of transactions was on the assessee - Held that:- In the instant case, only a few creditors have not sent confirmation but fact remains that they have received the payment through cheque, which were duly reflected in the books of accounts of the assessee. The A.O. has not verified the same in the books of the recipients and made the addition by adopting short cut method - The identity creditworthiness and genuineness have been proved beyond doubt as observed by the First Appellate Authority and confirmed by the Tribunal – Decided against the Revenue.
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2013 (10) TMI 84
Addition made on account of doubtful payment of transportation charges - Held that:- The assessee is a transporter who hired the services of the trucks from other transporter companies. For the payment of Rs.5,05,867/-, TDS certificate was already submitted. When tax is deducted on this amount, there is no question to make the addition again. There is a concurrent findings of both the appellate authorities that the payments were genuine and the Department has no adverse material in its possession except relying on the order of the A.O. Moreover, genuineness of payment is a question of fact, which has already been adjudicated – Decided against the Revenue.
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2013 (10) TMI 83
Incentive realized by way of additional quota of free sugar, under Sampat Incentive Scheme, as Capital Receipt - revenue has treated the same as revenue receipt – Held that:- A perusal of ground of appeal shows that the assessee had not taken any ground in respect of treatment of incentive subsidy - On perusal of the order of the CIT (A) also, it is not borne out that any additional ground is taken by the assessee, which was not adjudicated by him. For substantiating this ground, it was incumbent upon the assessee to show that any application was moved by it before the learned CIT (A) and the same was received in his office. Neither the copy of the application has been filed by the assessee nor any affidavit has been given to show that any such application was filed. For want of evidence, the ground remains unsubstantiated and is rejected accordingly – Decided against the Assessee.
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2013 (10) TMI 82
Additions made by the Assessing Officer u/s 69 - Additions on the basis of report of DVO when the matter was referred to DVO u/s 142A – Held that:- A.O. has not specifically rejected the books of account and never pointed out any defects – Reliance has been placed upon the judgment of the Hon’ble Apex court in the case of Sargam Cinema Vs. Commissioner of Income-Tax [2009 (10) TMI 569 - Supreme Court of India], wherein it has been observed that the Assessing Authority could not refer the matter to the Departmental Valuation Officer in a case where there was a categorical finding recorded by the Tribunal that the books of account were never rejected – Decided against the Revenue.
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2013 (10) TMI 81
Authorization of retention of seizure of the books of account, laptop and CDs etc. u/s 133A (3) (ia) – Held that:- As per Section 2 (12A) of the Income Tax Act the documents include data in any electronic form and data search device. The Income Tax authorities can retain these electronic devices found at the time of search for the purpose of investigation - Petitioner has not made out any good case for quashing the authorisation for survey and for seizure of the books of account, laptop and CDs, for which the authorisation for retention has been given by the Commissioner of Income Tax under Section 133A (3) (ia) for a period upto 31.12.2013 – Decided against the Assessee.
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2013 (10) TMI 80
Provision for future liabilities (expenses) - whether allowable - mercantile basis of accounting - Held that:- future expenses if estimated satisfactorily can be allowed as expense - following decision in Bharat Earth Movers v. CIT [2000 (8) TMI 4 - SUPREME Court] - decided against the revenue. Disallowance u/s 14A - Held that:- Calculation mistakes while applying Rule 8D were pointed out by the respondent-assessee, but these have not been adverted to in view of the findings recorded by the tribunal on merit. Rule 8D is not retrospective as held by this Court in Maxopp Investment Limited v. CIT, [2011 (11) TMI 267 - Delhi High Court]. Further to invoke Rule 8D, the Assessing Officer has to first record a finding that he was not satisfied with the correctness of the claim for expenditure made by the assessee in relation to income, which did not form part of the total income under the Act. No such satisfaction has been recorded by the Assessing Officer. - Decided against the revenue.
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2013 (10) TMI 79
FBT - Amounts spent on “Hero Bumper Bonanza Foreign Trip and Attractive Gift”, a fringe benefit - Incentive are given to the distributors for meeting quantity target. – Held that:- A perusal of the statutory provisions, answers by the CBDT, to question nos.61 and 66 and due consideration of findings recorded by the Income Tax Appellate Tribunal, leave no manner of doubt that opinion recorded by the Income Tax Appellate Tribunal is legally correct and free from error. The distinction between the two situations, referred to in answers to questions No.61 and 66, may appear to be minimal, depending upon ones perception, but a careful perusal of these answers reveals that where incentives are given to distributors for meeting quantity target, the expenses fall within answer to question No.61, whereas free gifts to distributors and customers without any quantitative target, fall within answer to question No.66 – Decided against the Revenue.
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2013 (10) TMI 78
Revenue challenged the remand order passed by the ITAT - subsequent to remand order and during pendency of this appeal orders were passed against such remand order and revenue succeeded in the subsequent order before CIT(A) and ITAT - Held that:- It is in this backdrop, when we perused the questions of law formulated by this Court vide order dated 13.12.2010, we find that the answers to those questions would be academic and not serve any useful purpose to the revenue. As a matter of fact, the revenue after remand has succeeded before both the Authorities below i.e., the 1st Appellate Authority and the Tribunal and the orders passed therein are subject matter in ITA No.199/2010. - appeal filed by revenue dismissed.
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2013 (10) TMI 77
Penalty for return not filed under the bonafied belief - Assessee main source of income is one-half share from M/s Haryana Steel Fabricator, Faridabad, in which he is a partner - Return in the case of the firm was received on 30.09.1979 and the assessment was made on total income of Rs.91,580/- u/s 143(3) of the Income Tax Act, 1961 vide assessment order dated 21.1.1981. Despite this, the assessee did not file his return and ultimately proceedings u/s 141 were initiated and notice u/s 148 was served upon the assessee on 18.09.1984 – Held that:- Assessee had without reasonable cause failed to furnish his return of income within time – Directed the assessee to pay a sum of Rs.23,260/- (Rs. Twenty three thousand two hundred & sixty only) by way of penalty. Petitioner's plea relating to ignorance of the affect of Section 80J of the Act or the pendency of a matter relating to vires of Section 80J of the Act may have been accepted, if the petitioner had offered an explanation before the Assessing Officer. The petitioner did not appear before the Assessing Officer to offer any explanation and, therefore, cannot be allowed to raise a fresh plea in proceedings under Article 226 of the Constitution of India. The Assessing Officer and the revisional authority have dealt with the petitioner's default and the lack of bonafides – Decided against the Assessee.
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2013 (10) TMI 76
Addition u/s 69C of the Income Tax Act - source of cash payments towards labour contractor - Held that:- The principal contention urged before us is that the vouchers found in the premises were prepared in lieu of a Bank guarantee has also been rightly rejected by the Tribunal. Assessee had failed to come up with any plausible documentary evidence to suggest that it had in fact obtained the cash vouchers in lieu of bank guarantees and also it had not explained the source of the sum of Rs.15,72,000/- which have been paid on different dates - It was quite evident that such payments were in the nature of cash transactions with its labour contractor outside its books of account - It was not the assessee’s claim that Rs.15 lakhs was part of Rs.30 lakhs which was paid to the sub- contractor. The assessee had also failed to come up with any credible evidence to explain the corresponding Source of income to incur such payments and the same had not also been recorded in its books of account - AO was justified in assessing the said sum of Rs.15,72,000/- in the hands of the assessee – Decided against the Assessee.
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2013 (10) TMI 75
Addition on account of suspicion - disallowance of expenditure on estimation basis - adhoc disallowance - Held that:- It is accepted principle that where the books of account are rejected or true profits are not disclosed in the books of account, some element of guess work while framing the assessment is inevitable. The guess work should not be a wild one, but should have a reasonable nexus to the available material and the circumstances of each case. There has to be some basis for arriving at the estimate and it should not be on mere suspicion. The assessment order does not depend upon the arbitrary caprice of the Assessing Officer, but on settled principles of justice. The authority concerned has to make an honest and fair estimate of income. Reliance has been placed on the judgment of Hon’ble Supreme Court of India in the case of Dhakeswari Cotton Mills Ltd [1954 (10) TMI 12 - SUPREME Court], wherein it has been held that in making an assessment under Section 23(3) of the Indian Income-tax Act, the Income-tax Officer is not fettered by technical rules of evidence and pleadings and he is entitled to act on material which may not be accepted as evidence in a court of law, but the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under Section 23(3). Revenue authorities had acted on surmises and guess work while sustaining the additions of different amounts. Further, the authorities were required to have some material to come to the conclusion that the addition was required in the case and not just because the case was selected for scrutiny that the addition was to be made – Decided in favor of Assessee.
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2013 (10) TMI 74
Whether Levy of penalty u/S 271(1)(c) of the Income Tax Act is automatic – Held that:- Explanation-1 to Section 271(1)(c). Section 1A deals with a case of assessee failing to offer an explanation or the explanation offered is found to be false. The present case do not fall under that provision - There is no finding recorded by the Assessing Authority or the lower appellate authority that the explanation offered by the assessee is false, their case of furnishing of inaccurate particulars. In the instant case a wrong claim is made for deduction and an explanation was offered, in the absence of a finding that he has failed to prove such explanation as bonafide, no penalty can be imposed - As long as there is no finding by the appellate authority that the explanation offered is not a bonafide one, the imposition of penalty is illegal - Imposition of penalty is not automatic. It is only when there is an attempt to evade tax by offering explanation which is found to be false or not bonafide the penalty can be imposed – Decided against the Revenue.
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2013 (10) TMI 73
Competency of ITAT to dismiss the appeal for want of prosecution – Held that:- Reliance has been placed upon the judgment of Hon’ble Supreme Court of India in the case of Commissioner of Income Tax, Madras v. S. Chenniappa Mudaliar, Madurai [1969 (2) TMI 10 - SUPREME Court], wherein it has been held that Income Tax Appellate Tribunal is not competent to dismiss the appeal for want of prosecution - The judgment was given explaining the provisions of Section 33 (4) of the Income Tax Act, 1922. Section 254 of the Act read with Rule 24 of the IT (Appellate Tribunal) Rules, 1963 do not provide for any such powers to the Tribunal to dismiss appeal in limine - The income tax appeals are allowed - The matter is remanded to be decided on merits – Decided in favor of Assessee.
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2013 (10) TMI 72
Return of seized money - section 132A - The highly competent senior Special Public Prosecutor argued that ordering to return only part of the seized amount is contrary to law and facts of the case. As per Section 132A of the Income Tax Act, 1961, the Income Tax Department is empowered to enquire into the unexplained cash seized from the first respondent and had assessed the same in accordance with the relevant provisions of the Income Tax Act, 1961. Held that:- this Court does not find any lapse in the conclusions arrived at regarding the return of money in part to the accused on a stringent condition. - the seized amount should not be kept idle as "dead investment". The amount seized from the first respondent herein could be utilized until the veracity of the case has been determined. Hence, the interim order is maintainable. Therefore, the part amount had been released to the accused on condition that he executes a bond for a sum of Rs.6,00,000/- with one surety for likesum on condition that he shall return the amount to the Court as and when required. Therefore, the learned Magistrate's order will not be prejudicial to the interest of the Income Tax Department - Decided against the revenue.
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2013 (10) TMI 71
Raising of new grounds belatedly i.e. raising of stale issues – Held that:- Assessee never challenged the computation made under Section 115JA or challenged or questioned the assessment order on the ground that adjustments had not been made, as required and mandated by law - This issue/question was not raised before the tribunal as the petitioner, who appears, did not want to raise the said contention and issue - Allowing the appellant to now question the computation will be allowing a person to raise stale issue and to question a decision which was accepted – Appellant-assessee should not be permitted and allowed to raise this ground belatedly at this stage – Decided against the Assessee.
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2013 (10) TMI 70
Allowability of Bad-debts u/s 36(1)(vii) of the Income Tax Act - Onus to prove that deduction as bad-debts is allowable – Held that:- The only objection raised by the department is that the debt has not become bad as there is still hope to recover the amount. The said approach in view of the peculiar facts of the present case is not justified - Assessee took out the proceedings to recover the amount by sale of the properties of the debtors unsuccessfully is indicative of the fact that the debt has become bad in absence of any plea of collusion or bad fate of the assessee. Other ground taken by the Tribunal is that the assessee has not proceeded against the guarantors - One of the guarantors is Sri Anand Srivastava. The guarantee was invoked through a letter to the District Magistrate, Bareilly. However, Sri Anand Srivastava could not be located and was not traceable. The theory that Sri Anand Srivastava is not traceable was discarded as he happened to be son of Sri G.P. Srivastava, an IAS officer of U.P. cadre. There is nothing on record to show that the outstanding dues could have been recovered from the guarantors or the guarantors were available. If the assessee corporation which is State owned corporation in its wisdom resolved to write off the debt treating it as a bad debt, in view of its inability to recover the amount from the District Authorities, there is sufficient compliance of section 36(1) (VII) of the Act - There is sufficient evidence on record to hold that the outstanding dues have become bad debts and it cannot be realised – Decided in favor of Assessee.
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2013 (10) TMI 69
Tax effect - Maintainability of appeal in view of the CBDT Circular/ Instruction No.5 of 2008 - Ground that the tax effect in the present appeal is less than Rs.2,00,000/- Held that:- "Tax effect" means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues against which appeal is intended to be filed (hereinafter referred to as "disputed Issues"). - However the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions. In case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against - In the present case on examination of the order of the Assessing Officer, notional tax effect on loss return of Rs.1,56,47,435/- would come to Rs.32,03,487/- and thus the exceptions in Para 4 of the CBDT Instruction No.5 of 2008 will not bar the appeal. The revenue in such case will be entitled to prefer second appeal to the Tribunal – Decided in favor of Revenue.
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2013 (10) TMI 68
Reassessment - Notice u/s 148 for making additions u/s 41(1) - the assessee was collecting the amount towards excise duty by way of security as there was dispute of classification of goods - Interest on fixed deposits made out of security deposits in the form of excise duty collected were offered for taxation – Held that:- A provisional assessment was made in pursuance to which the assessee started depositing the amount collected as excise duty from customers and offerred the same as security to the Central Excise Department. He offerred interest on the deposit to tax. The dispute was ultimately resolved in the year 2000 in which he was liable to pay Rs.26,39,484/-. The assessee thereafter started returning excise duty to the persons from whom they were collected and the remaining amount to tax in the assessment year 2004-05. In the circumstances, it cannot be said that the assessee was allowed any allowance or deduction in the assessment year in question in respect of expenditure or trading liability incurred by the assessee. Every security in pursuance to provisional assessment in respect of which final assessment were passed and in which amount collected were offerred as security by way of FDs to collect excise duty would not fall within the meaning of trading liability incurred by assessee, thus provision of Section 41 (1) is not applicable. There was no nexus between reasons recorded in formation of belief from the facts emerging in the case, the jurisdiction for framing reassessment under Section 147 - decided against the revenue.
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2013 (10) TMI 67
Revision u/s 263 - Deduction u/s 80IA - Taxability of Transport subsidy received - Held that:- in view of the decision in Meghalaya Steels Ltd. [2010 (9) TMI 679 - GAUHATI HIGH COURT], there can be no escape from the conclusion that the Revisional Authority had seriously erred in law in interfering with the assessment order, dated 08.02.2006, on the ground that the transport subsidy, received by the industrial undertaking of the appellant Company, could not have been deducted by resorting to Section 80IA. By its impugned order, dated 28.01.2011, the learned Tribunal perpetuated the error by agreeing with the views expressed by the Revisional Authority that transport subsidy was not entitled to be deducted in terms of the provisions of Section 80IA. – Decided in favor of Assessee.
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2013 (10) TMI 66
Block assessment - Requirement of issue of Notice u/s 143(2) – Held that:- Reliance has been placed upon the judgment of Supreme Court in Asstt. CIT v. Hotel Blue Moon, [2010 (2) TMI 1 - SUPREME COURT OF INDIA], which has been followed by this Court in CIT vs. Mukesh Kumar Agrawal, [2012 (7) TMI 543 - Allahabad High Court] - In response to notice under Section 158-BC (a) of the Act relating to the block assessment, the Assessing Officer, for any reason repudiates the return filed by the assessee, the AO must necessarily issue notice under Section 143 (2) of the Act within the time prescribed. In the proviso to Section 143 (2), the issuance of notice is mandatory and that the very foundation of the jurisdiction under Section 158-BC of the Act requires a notice to be served on the person, who is found to have undisclosed income. The requirement of notice under Section 143 (2) cannot be dispensed with – Decided against the Revenue.
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Customs
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2013 (10) TMI 65
Disciplinary proceedings against the customs officer (Inspector) - delay in the proceedings - Held that:- the delay in initiation of the proceedings certainly has lent room for allegations of bias, mala fide and misuse of powers against the respondent by the petitioners. - when a plea of unexplained delay in initiation of disciplinary proceedings as well as prejudice to the delinquent officer is raised, the court has to weigh the facts appearing for and against the petitioners pleas and take a decision on the totality of circumstances. The court has to indulge in a process of balancing. The plea of the petitioners that they did not have the original documents or certified copies thereof is baseless and rightly rejected by the Tribunal in the impugned order. As noted above, the petitioners were in possession of photocopy of original shipping bills which photocopy had been prepared by them and were available throughout. Even if the plea that the original documents or certified copy were necessary for initiating the disciplinary proceedings were to be accepted, the action of the respondents was grossly belated and certainly the long period which has lapsed was not necessary for procuring the same. The respondents have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the petitioner. - Decided in favor of customs officer.
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2013 (10) TMI 64
Attachment and Recovery of Customs duties - Scope of the Definition “Defaulter” - Whether, for dues of the "defaulter", the appellants, i.e; wife and children of the defaulter, were entitled to be proceeded against and the properties standing in their name, applied to the satisfaction of such dues of the defaulter – Held that:- The 'defaulter' was the person who was conducting the business and the notice of default under the Rules was also served only on him - While invoking Rule 9, which prohibits alienation of properties in any manner, the properties of the wife and children were sought to be distrained - there was no power conferred on the officer to adjudicate on the ownership of a property held by another, deeming it to be ostensible ownership and find the defaulter to be the real owner - the Directors of a Company were sought to be proceeded against – Relying upon Sunil Parmeshwar Mittal v. Deputy Commissioner (Recovery Cell) [2005 (8) TMI 116 - HIGH COURT OF JUDICATURE AT BOMBAY] and Vandana Bidyut Chaterjee v. Union of India [2012 (4) TMI 42 - BOMBAY HIGH COURT] - The distinct legal status of a Company, apart from its Directors and shareholders were rightly noticed and the Directors were absolved from being proceeded with for recovery of dues from the Company to the Government and this was on a specific finding that the Statute and the Rules framed thereunder provided only for recovery from the "defaulter" and for proceedings against the property of the "defaulter". Benami Transactions - The transaction between the husband and wife cannot, going by the declaration of law, be ever termed as a benami transaction, since the Benami Act itself saves such transaction entered into for the benefit of the wife, even if the consideration is paid by the husband - To prove otherwise was the burden of the Department. Recovery Rules - Sustainability of Notices and Proceedings - neither the Act nor the Rules provide for any such proceeding to be taken against the wife or the sons and recovery to be made from the properties owned and possessed by such other persons - the judgment of the learned Single Judge is not liable to be interfered with, at all. The provision under Rule 9 making any transfer or delivery of a property attached as void would in any event be only effective from the date of notice under Rule 4, that too applicable only to the "defaulter's" properties. The transactions said to have been made by the defaulter in the name of the wife and children are all before such notice was served on the "defaulter". The transaction with respect to the property which was the subject matter of the suit, we notice, was long before even the transaction which led to the short-levy. - Appeal Dismissed.
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2013 (10) TMI 63
Import of Construction Sand - The only case of the Customs Department for detaining the consignment was for want of 'Plant Quarantine Certificate' - There was no allegation with regard to any infringement of the Customs Act as to the mis-declaration or otherwise or as to the absence of any valid licence for the import, but for branding the import as illegal under Section 11A of the Customs Act – Held that:- even the Plant Quarantine Order enables relaxation of the conditions of the Import Permit under Chapter VI - Sub Clause 1 of Clause 14 enables the Central Government to relax any of the conditions of the Order relating to the import permit, which is to be exercised, in public interest, by the Joint Secretary in charge of the Plant production in the Department of Agriculture & Cooperation, who had been designated as the Competent Authority. Sub Clause 2 of Clause 14 stipulates that, in the event of grant of relaxation by the Competent Authority, the consignment shall be released, after charging fee for import permit and the fee for Plant Quarantine inspection at 'five times' of normal rates - The fee and such other particulars were given under Schedule IX - Whether this Clause will be applicable itself, was a matter to be looked into and decided in the course of adjudication proceedings and as such, no opinion was being expressed by this Court for the time being. Since it was admitted that, there was no loss of revenue, further liability of the petitioner, if any, can be finalised in the course of adjudication proceedings - But for that matter, the Court finds that the goods need not be detained any longer - Accordingly, there will be a direction to the respondents to release the goods to the petitioner forthwith, at any rate within 'two weeks' from the date of receipt of a copy of this judgment - Since the quantum payable to have the goods released issued by the fourth respondent was not brought on record, the Court reckons the same as five times of the amount payable as given in Schedule IX to the Plant Quarantine Order - The goods shall be released to the petitioner as above on payment of the requisite amount and also on executing a 'Bond' for meeting the balance liability, if any, subject to adjudication proceedings - On receipt of the same, adjudication proceedings shall be finalised by the first respondent in accordance with law, as expeditiously as possible, at any rate within 'one month' thereafter.
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2013 (10) TMI 62
Refund of provisional assessed duty deposited under protest - period of limitation - Held that:- no final assessment under Section 17 has been passed much less any speaking order has been made indicating as to why the benefit claimed by the appellant, i.e., exemption from payment of the custom duty vide Notification No.21/2002 dated 01.03.2002 has been denied to it. It is nobody's case that the importer confirms its acceptance of the assessment in writing. On the contrary, from the very beginning, the appellant's claim is that it is exempted from payment of customs duty on the imported cargos in question vide Notification No.21/2002 dated 01.03.2002. Therefore, as contemplated under Section 17, the Proper Officer is obliged to pass a speaking order of assessment, which has not been done in the instant case. Principle of natural justice - Held that:- There is no dispute over the legal proposition settled by the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). It goes without saying that refund flows from an order. So long as an order of assessment stands, the duty assessed would be payable as per the said order of assessment. If that order is not challenged, no refund can be claimed. The officer empowered to consider different claims for refund cannot review the order of assessment for which right of appeal has been created under the statute. In the instant case, as held above, no order of assessment as contemplated under Section 17(2) read with Section 17(5) has been passed. Therefore, there is no question of filing any appeal challenging the order of assessment. Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. When an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. Proper officer directed to pass a speaking order in terms of Section 17(2) read with Section 17(5) of the Act, 1962 after giving an opportunity of hearing to the appellant.
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2013 (10) TMI 61
Deposit of Duty - Whether the Tribunal was justified in directing the appellants to deposit 15% of the duty – Held that:- Evidentiary value of e-mail communication in the case of SGS Corporation itself was yet to be established - The Tribunal had declined to consider the retraction on the ground that the retraction had not been made before the authority who had recorded their statement - the retraction letter was in fact addressed to the officer who had recorded the statement - The prima facie view of the Tribunal on the basis of which pre-deposit was ordered cannot be sustained – Order was Quashed and set aside - and the Tribunal was directed to hear the appeal on merits without insisting any pre-deposit.
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Corporate Laws
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2013 (10) TMI 60
Powers of Company Law Board - Whether the Company Law Board, after having granted leave to the parties to the proceedings to institute a civil suit, could have usurped the powers of the Civil Court to find out whether the transfer of right in an immovable property was right or wrong - Held that:- though the Company Law Board was entitled to decide the validity of the transfer, despite granting leave to the parties to go to the Civil Court, it should not have decided the same, without impleading the appellant as a party. The benefit of the order of the Company Law Board has enured to both respondents 1 to 4 and respondents 6 to 8 alike. This is why, respondents 6 to 8 have supported the stand taken by respondents 1 to 4 in the above appeal. In this process, a Public Financial Institution viz., the State Bank of India, has become the casualty. Since this cannot be allowed to happen, I am of the view that the opportunity given to respondents 10 and 11, cannot be considered as sufficient to protect the interests of the appellant herein. The appellant, by itself, is entitled to have an opportunity to satisfy the Company Law Board that they have bona fide entered into a transaction. - Decided in favour of appellant.
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2013 (10) TMI 59
Validity of order - Whether CLB was justified in directing the petitioner to argue the main case first and thereafter to argue the interlocutory applications - Held that:- Company Law Board was not justified in exercising its wisdom in changing the order of hearing of the interlocutory applications and the main matter. After hearing the Learned Advocate of the parties and after considering the materials on record this court feels that justice would be subserved if the interlocutory application filed by the petitioner for interim injunction and the application filed by the respondent for dismissal thereof are considered in isolation of the main proceeding and prior to its disposal. - However, since the hearing of the main case was consolidated with the hearing of these two interlocutory application, with consent of parties, this court, by giving effect to such agreement arrived at between the parties, disposes of this appeal by directing the Company Law Board to hear out those two interlocutory applications along with the parent proceeding being C.P No.01 of 2011 and dispose of all at a time by passing a common judgment and/or order as early as possible - matter remitted back with rider - Decided in favour of appellant.
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Service Tax
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2013 (10) TMI 96
Recovery - Service Tax Voluntary Compliance Encouragement Scheme, 2013 - Held that:- petitioner has prima facie demonstrated that he fulfills the conditions under prescribed Section 106 and 107 of the Finance Act, 1994 as amended by Finance Act, 2013 and that unless application is considered and decided, no proceedings under Section 87 may be allowed to continue. The object of the Service Tax Voluntary Compliance Encouragement Scheme, 2013 may be defeated, if the recovery is allowed to proceed. Petitioner's application under the Service Tax Voluntary Compliance Encouragement Scheme, 2013 made on 20th June, 2013 to be decided by the Commissioner of Central Excise (competent authority) within a period of 60 days from today. The petitioner will file certified copy of this order with the competent authority within a week. We further direct that until disposal of the application dated 20th June, 2013, the recovery proceedings including operation of the impugned notice dated 7.6.2013 under Section 87 of the Finance Act, 1994 issued by the Deputy Commissioner (AE), Central Excise and Service Tax Noida shall remain suspended. The bank accounts shall be released by the respective banks. Any amount adjusted will be subject to result of the writ petition - Decided in favour of assessee.
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2013 (10) TMI 95
Waiver of Penalty u/s 80 - Whether ignorance of law can be a reasonable cause for allowing benefit of waiving penalties under Section 80 of the Finance Act, 1994 – Held that:- The ignorance of law is of no excuse - The Revenue in the appeal contended that ignorance of law is of no excuse - However, it is not disputed by the Revenue that there was no mala fide intention in depositing the tax in time by the respondent - both the respondents are individual owners of vehicles and providing the vehicles to M/s. BSNL Ltd., a Public Sector undertaking and IFFCO under the contract - no substantial question of law arises for decision – Appeal Dismissed.
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2013 (10) TMI 94
Demand - reconciliation of ST returns with the balance sheet - Held that:- It is seen from the annexures ‘A’, ‘B’ and ‘C’ to the show cause notice dated 18.10.2010 that demand is mainly raised based on reconciliation of ST returns filed by the appellant with their balance sheet. In view of the case law relied upon, the appellant has, prima facie, made out a case for complete waiver of pre-deposit of confirmed dues and penalties. - stay granted.
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2013 (10) TMI 93
Short payment of service tax - Penalty u/s 78 - Held that:- applicant has paid 25% of the tax short paid as penalty adjudged by the original authority which is sufficient for waiver of pre-deposit of balance penalty for admission of appeal in the facts and circumstances of the case. So it is ordered accordingly. Further, there shall be stay on collection of such penalty arising from the pendency of the appeal - stay granted.
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2013 (10) TMI 92
Demand - Cargo Handling Service - Held that:- applicant were acting as Goods Transport Agency issuing consignment note is being presented for the first time. No evidence to prove this contention has been placed either before the adjudicating authority or the Commissioner (Appeals). - if the appellant are to be treated as a provider of cargo handling service, they are eligible for cenvat credit. However, it is not clear whether goods transport service was on which freight was paid was used for providing cargo handling service. On this issue also, there is no factual submissions before the lower authorities. Thus the facts relevant for deciding tax liability are not very clear. Since the applicant has not been able to put forth their facts and contentions before lower authorities in a proper manner, stay granted partly.
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2013 (10) TMI 91
Penalty - Less service tax paid - Held that:- After Considering the complexity of Taxation of Service (Provided from Outside India and Received in India) Rules, 2006 and the fact that the amount involved itself consisted of two components of different natures and majority portion was not taxable, benefit of doubt is given to the appellant and this is not a case where suppression or fraud or action with intention to evade tax is involved and hold that they were eligible for the benefit under section 73 (3) of the Finance Act, 1994 - penalty deleted - decided in favor of assessee.
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2013 (10) TMI 90
Classification of service - canvassing air cargo - Business Auxiliary Service or not - Held that:- Case law relied upon for considering service as Business Auxiliary Service [2013 (8) TMI 451 - CESTAT CHENNAI] is not applicable Since ocean freight itself was not taxable under any entry, it was considered proper to grant total waiver. In the case before us, the issue is service of canvassing air cargo which is actually a taxable service though exemption is provided in respect of export cargo. Transportation activity is predominantly done outside. Canvassing of cargo is done in India. So taxability of both the activities are to be treated differently. So the argument that there cannot be a Business Auxiliary Service for a non-taxable service may not be applicable to the instant case. We find that in this case the service is taxable but exempted. In the other cases relied upon by the advocate, there were other elements like, CHA service, ocean freight service etc. involved. Therefore the facts are not identical - applicant to make a pre-deposit of 50% of the tax demanded - stay granted partly.
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2013 (10) TMI 89
Waiver of Pre-deposit - The Applicant claimed that they have already deposited an amount of Rs.13.27 Lakhs against the demand confirmed by the department – Held that:- The Jurisdictional Range Superintendent had not been able to ascertain whether the said amount had been paid by the Applicant and also relates to the demand confirmed by the department - there was other option but to accept the version of the Assessee that the amount had been deposited by the Applicant - the fact that around 50% of the amount had been already deposited was sufficient to hear their Appeal – Stay Granted.
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Central Excise
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2013 (10) TMI 58
Concessional Rate of Duty – Notification No. 29/2004 - Assessee was engaged in manufacturing of 'Tents' nomenclated as 'Tent Extendable' falling under Chapter 63 of the Central Excise Tariff – Held that:- There was no findings recorded in the order in original that the goods were containing any textile material - The use of aluminum pipes to hold the tents will not prima facie take them out of the notified goods for deny the concessional rate of clearance of goods. Waiver of Pre –Deposit – Held that:- Relying upon Standard Niwar Mills v. Commissioner of Central Excise [2013 (10) TMI 47 - CESTAT NEW DELHI] - The petitioner had made out prima facie case for waiver of the pre-deposit of the entire amount as a condition for hearing of the appeal before the Commissioner of Appeals and that the order to deposit 25% of the duty was not only against the strong prima facie case but will also in the facts and circumstances of the case cause serious prejudice to the petitioner. - stay granted.
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2013 (10) TMI 57
Waiving the Pre-Deposit Order – Held that:- The Tribunal has considered both the aspects of a prima facie case and financial hardship as required, and since its reasoning is not shown to be perverse or to suffer from any error apparent on the face of record, the exercise of the writ jurisdiction is not warranted - The relief as sought of waiving or reducing the pre-deposit order cannot be granted – Decided against Petitioner.
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2013 (10) TMI 56
Penalty Set Aside - Whether the Tribunal had committed substantial error in setting aside penalty imposed under Rule 13 of the Cenvat Credit Rules – Held that:- Merely because the addresses of the firms which received the challans were incomplete or not found, the inference on the part of the Revenue authorities that they were not in existence was not justified - It was observed that the assessee was maintaining a lot register and the entries were on record indicating the payments received from the merchant-manufacturers - Those entries were acceptable and not required to be doubted as the payment was by account payee cheques - Those merchants were found to have filed return of income also - The Commissioner (Appeals) could not have held against the assessee citing a ground only that the assessee had not maintained production record in particular form. Whether the challans were of non-existent firms or not was a question which was to be determined on the basis of material in that regard - The Tribunal has on consideration of relevant material and by drawing conclusions therefrom held against the Revenue - They are the findings based on appreciation of facts and material - We are in agreement with the findings recorded by the Tribunal - The findings being factual and the Tribunal being a final fact finding authority, no substantial questions of law arises for consideration and the order is not liable to be interfered with – Decided against the revenue.
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2013 (10) TMI 55
Remanding Back of the Order - Whether the CESTAT by its order was justified in remanding the matter back to the Commissioner for fresh adjudication – Held that:- On perusal of the order of CESTAT, it is seen that the Tribunal has not remanded the matter seeking any additional facts - Nowhere in the order it is stated that on the basis of the facts on record, it is not possible to decide the case on merits - The Apex Court in the case of M.G. Shahani & Co. (Delhi) Ltd. v. Collector of C. Excise, New Delhi [1994 (8) TMI 34 - SUPREME COURT OF INDIA ] - if on the materials on record, the Tribunal can analyse the evidence and arrive at a factual conclusion, the Tribunal ought not to remand the matter and instead hear the matter and pass the order on merits - the order of the CESTAT was quashed and set aside – Decided in favour of Assessee.
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2013 (10) TMI 54
Rate of Interest –The assessee defaulted on three occasions in payment of duty due and eventually paid the amount along with interest at the rate of 15% in terms of Rule 8(3) of the Central Excise Rules, 2002 read with Notification No. 19/2002-C.E. – Held that:- The Commissioner (Appeals) and the CESTAT held that the rate of interest prevailing as on the date of default will be taken and that the new rate introduced by the amendment to Rule issued vide the Notification No. 12/2003 and w.e.f 1-4-2003 will be applicable to the defaults which occurred after 1-4-2003 – there was no error of law in the reasoning concurrently arrived at by the Commissioner (Appeals) and the CESTAT warranting consideration of this appeal, since no substantial question of law arises for consideration.
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2013 (10) TMI 53
Terms of Pre-deposit – Third Party Failure - Whether the appeal before the CESTAT u/s 35E of the Central Excise Act could have been dismissed as a consequence of third party’s failure to comply with the terms of pre-deposit – Held that:- The Tribunal stated that subject to such compliance the present appellants’ applications were granted and they were not required to deposit any amount - However, the Tribunal did not visualize a situation where there was either non-payment which was directed by it or partial payment - The Tribunal at least ought to have heard the appellants and considered their individual circumstances and further ought to have entertained their applications for restoration of the appeals - This is more so in view of the fact that the original order did not cast the liability to the extent of 15 crores on the appellants either collectively or individually - The Tribunal should restore the appeals and the applications of the appellants to be decided on merits – Decided in favour of Petitioner.
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2013 (10) TMI 52
Assessable Value of Goods - Whether the respondent is entitled to exclude from the assessable value – Held that:- Under Section 35-G of the Central Excise Act, the appeal does not lie to this Court on the value of goods - Decided against Petitioner.
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2013 (10) TMI 51
Damaged Inputs by Fire - Whether inputs damaged in fire could be considered as inputs not used in the manufacture of final products and accordingly duty involved on such inputs liable to be recovered – Held that:- The Adjudicating Authority had taken into consideration all the discrepancies pointed out by the department before the appellate authority - It has taken into account the method of computation of demand; extent of Modvat credit reversable on capital goods; whether duty is demandable and Modvat credit is reversible on the finished goods/inputs, which are in the nature of ‘work in process’ and whether customs duty is demandable on damaged plant & machinery parts, equipments, etc. does not arise for consideration inasmuch as the Tribunal found that the demand of duty in respect of those capital goods on which no Modvat credit was availed by the respondent after verifying from the record, was dropped. Whether summary disposal by the Appellate Authority without going into the merit of the case could be considered a proper and legal order – Held that:- The Tribunal, after going into the merits of the matter, had found that the appeal was dismissed after finding that the Adjudicating Authority has considered all the issues, and that the Revenue was raising vague pleas before the Appellate Authority. The findings of the Adjudicating Authority as affirmed by the Appellate Authority and the Tribunal that the part of demand of duty in respect of those capital goods on which no Modvat credit was availed by the respondent after verifying from the records was dropped.
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2013 (10) TMI 50
Condonation of Delay - Held that:- The Tribunal has recorded the finding that the appellant was negligent, and that he did not satisfactorily explain the delay, inasmuch as when the Advocate of the appellant argued the matter before Commissioner (Appeals), he did not give the address for communicating the order - It was the same address on which the order of the Commissioner (Appeals) was communicated - even in this appeal, the same address has been given - If the factory was closed and closure of the factory was the main ground on which the application for condonaton of delay was filed, the appellant should have given the correct address, atleast, in this appeal - There was no error in the order of the Tribunal in dismissing the appeal of the appellant on the ground of delay, which was not sufficiently explained - The grounds raised in the appeal do not raise any substantial questions of law to be considered in the appeal – Decided against Petitioner.
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2013 (10) TMI 49
Deletion of Duty and Penalty u/s 11AC - Whether the CESTAT was justified in deleting the duty confirmed and penalty levied under Section 11AC for the period beyond one year from the date of issuance of the show-cause notice – Held that:- If supplies were made by the assessee during the period on the basis of the representations made by Transmission Corporation of Andhra Pradesh and subsequently it was found that the representation made by the Transmission Corporation was erroneous, the assessee could not be penalized - no fault can be found with the decision of the CESTAT in deleting the demand of duty and penalty for the period beyond the normal period. - Decided against the revenue.
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2013 (10) TMI 47
Concessional rate of duty - Notification No. 29/2004 - manufacturing of tents - tents extendable made of cotton along with aluminium pipes, two way and three way joints and other accessories - Held that:- In the explanation (1) given in the notification it is stated that the goods of cotton not containing any other textile material, shall include goods made from fabric of cotton, not containing any other textile materials, even if they contain sewing threads, cords, labels, elastic tapes, zip fasteners and similar items used for stitching, fastening, holding or adornment, of materials other than cotton. The last line of the explanation similar items used for stitching, fastening, holding or adornment of materials other than cotton is also mentioned. - the aluminium pipes and joints cleared along with the tent extendable are used for holding of the tents. - prima facie applicant had in a strong case for waiver of pre-deposit - stay granted.
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CST, VAT & Sales Tax
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2013 (10) TMI 88
Appointment of Members – Residential Accommodation - Directions seek for the appointment of members of the Sales Tax Tribunal under the Maharashtra Value Added Tax Act, 2002 – Held that:- Even when retired District Judges were appointed as Members of the Sales Tax Tribunal they do not wish to continue on account of not being provided with residential accommodation - Very recently one Member (originally belonging to Judicial service) had tendered resignation only in view of absence of residential accommodation in Mumbai - It would be desirable for the State Government to provide residential accommodation to all the Members of the Tribunal so as to ensure proper functioning of the Tribunal. Retirement Age of Members – Held that:- When the retirement age of the President of Tribunal was 65 years, there was no reason why the other Members of the Tribunal should not be given retirement age of 65 years - The suggestion being made on behalf of the Sales Tax Tribunal Bar Association was quite reasonable and the State Government may consider the same at the earliest – Decided in favour of Petitioner.
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Indian Laws
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2013 (10) TMI 87
De-Registration and Withdrawal of Registration - Deputy General Manager of PHHL directed de-registration of the petitioner company from the list of suppliers of PHHL and banned it from doing business dealings in future with PHHL - Held that:- the petitioner has not disclosed the true state of affairs to the Court since it took the stand that it has no linkage with the Indian Company whereas the true state of affairs as reflected in the statement made by Mr. Santosh Kumar and various documents sent by the petitioner company to PHHL reflect otherwise and clearly indicate a close connection between the two companies. - petition dismissed.
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2013 (10) TMI 86
Right to information - Appellant sought information relating to action taken against two specified pre-shipment agencies as recommended by Customs Excise Appellate Tribunal in its order in case [2011 (4) TMI 228 - CESTAT, AHMEDABAD] - Exemption u/s 8(1)(d) - Held that:- The Commission is not in agreement with the decision of the CPIO to correlate the information sought at point (a) & (d) to the exemption clause 8(1)(d) of the RTI Act, 2005. If certain action has been taken against any such pre-inspection agency for not doing their work properly such information ought to be in public domain once the investigation/inquiry in relation to the same is over therefore this information is to be provided to the appellant. However, in relation to the complaints/references in relation to which investigation/inquiry is still pending, the name, complaint no. and date of complaint shall be provided as premature disclosure of information may effect the process of investigation - such information is expected to be a part of the record of the public authority - order of the first appellate authority should not be merely a cryptic order, the first appellate authority is bound to pass a speaking order giving reasoning behind the order - Decision in favour of appellant.
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2013 (10) TMI 48
Doctrine of legitimate expectation - direction of purchase the air tickets from specified airlines only - Abuse of dominant position - it was averred that the Government had position of dominance and the same was being used only in favour of Balmer Lawrie & Co. and M/s. Ashok Travels & Tours Ltd. thereby depriving the other travel agents who were members of the informant/appellant's business. It was pointed out that because of the aforementioned office memorandum the Government officials would be compelled to purchase the tickets only through the aforementioned agencies and thereby there would be creation of monopoly in favour of these two agencies and thus the competition in that behalf would be adversely affected. Held that:- Insofar as the contention that the Government Memorandum was in the nature of anti-competitive agreement, the finding of the CCI is correct that the said Government Memorandum does not amount to an agreement. It is an internal administrative decision to deal with a particular agency in the matter of securing air tickets. In our opinion, it cannot come within the mischief of any of the sub-section of Section 3 of the Act. In fact no particular ticketing agency could claim any right in the matter of dealing with the Government. The Government like any other consumer has a right to deal with the agency that it likes. An administrative decision to avail of the services of Respondent Nos. 1 and 2 in the first place is not an agreement with Respondent Nos. 1 and 2 and secondly it is not a trading activity. It is also not distributing state largesse. At any rate, our task in this Tribunal would only be limited to decide as to whether the action on the part of the Government in passing the Government Memorandum is in contravention of any of the provisions of the Act. - decided against the appellants.
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