Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
March 16, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Highlights / Catch Notes
Income Tax
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Penalty under Section 271(1)(c) - Since the Tribunal deleted the addition and ordered expunging the initiation of penalty proceedings under Section 271(1C) no reason to interfere with the finding of the Tribunal. - HC
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Rectification u/s 154 - the levy of additional tax is only a consequential event to the prima facie adjustment, which was carried out through the order passed u/s 154 - in favor of revenue - HC
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Annual maintenance contracts (AMC) - TDS u/s 194C or u/s 194J - services of technical persons utilized - it may be technical services for contractor but not for the assessee - Sec. 194J is not applicable - AT
Customs
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Project Import - Once the imported equipment was installed the benefit could not be denied for the failure to fulfil the conditions prescribed under Regulation 7 of PIR - AT
Corporate Law
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Winding up - It is well settled that the proceedings of winding up is not a recovery proceeding. Once it is demonstrated that the debt is subject to a bona fide dispute, the Court will not order for winding up. - HC
Service Tax
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Delay in filling appeal - the petitioner having lost to the appellate remedy on account of his own latches cannot seek to challenge an order in a proceedings under Article 226 of the Constitution of India. - HC
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Benefit of abatement of 67% denied - while reducing the amount of pre-deposit to Rs.19,50,000/-, which is approximately 50% of the total amount due, and therefore, such a lenient approach made by the first respondent, cannot be called in question in this Writ Petition - HC
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Stay - Law is well settled that the capacity of a party to pay the pre-deposit amount had to be noticed and the financial burden and undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. - HC
Central Excise
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Duty demand on circuit breakers with control panels - once reclassification Notification is issued, the Revenue cannot invoke Section 11A of the Act to make demand for a period prior to the date of said classification notification also. - HC
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Issue was not raised before Commissioner (Appeal) or CESTAT - the appeal shall be heard only on the question so formulated, this court is of the view that the applicant is not entitled to the relief prayed for in the present application. - HC
VAT
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Revision of Assessment order - It cannot be claimed that the period of limitation would not apply in respect of cases where an order had been passed remitting the matter back to the authority concerned for considering it afresh. - HC
Case Laws:
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Income Tax
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2013 (3) TMI 290
Penalty under Section 271(1)(c) - assessee himself had admitted the unexplained investment made in gold and cash which was not disclosed in the book of accounts - ITAT deleted the penalty levy - assessee is doing business of manufacture of gold jewels for others on job work basis - whether material collected and the statement recorded during the survey operation under Section 133A has any evidentiary value? - Held that:- As decided in Pullangode Rubber Produce Co.Ltd. vs. State of Kerala, (1971 (9) TMI 64 - SUPREME COURT) that an admission is extremely an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect. Any statement recorded under Section 133A would have evidentiary value only if supported with materials and form the basis for assessment. In his explanation, the assessee stated that he has been doing job work and the remaining 2100 gms had been given to 3 Asaris. The Officers had not verified whether the gold was available with the said Asaris nor chosen to examine the said Asaris. The statement recorded during survey operation u/s 133A may be a relevant material but in the absence of further materials to substantiate the same, such statement recorded under Section 133A can hardly be the basis for assessment. During the survey, 900 gms of gold was found in the premises of the assessee and the statement of the assessee was supported only to the extent of actual seizure of 900 gms. Since the statement of assessee in respect of the remaining gold was not substantiated, the Tribunal rightly set aside the addition in respect of the gold. Unaccounted cash of Rs.2,49,770/-, the assessee tried to explain the cash by stating that he has sold the land at Kodaikanal for Rs.2,80,000/- and the same was deposited in Bank on 5.10.2002 and the amount was withdrawn from the Bank on 17.10.2002 and during the course of survey, the Department came across the said cash. The survey was on 29.10.2002 and the drawal of money from the Bank was a few days before search. Even though the said amount of Rs.2,49,770/- was not disclosed in his books, the assessee tried to explain the same. The Tribunal rightly set aside the addition and remitted to the AO to verify whether the cash balance as per the books of accounts has emanated from the cash withdrawn from the Bank on 17.10.2002. No error or infirmity in the order of the Tribunal to verify the correctness of assessee's statement. Addition of interest earned on the unaccounted investment in money lending business - the enhancement is based only on the statement recorded from the assessee. No other material or information was available that the assessee invested Rs.5.00 lakhs in money lending business and earned interest. the addition of Rs.5.00 lakhs as unaccounted investment in money lending business and addition of interest earned is based on only rough estimate and the Tribunal rightly deleted the addition on the interest of money lending business, household expenses and creditors. Since the Tribunal deleted the addition and ordered expunging the initiation of penalty proceedings under Section 271(1C) no reason to interfere with the finding of the Tribunal. Tribunal rightly set aside the order of Commissioner of Income-tax (Appeals) as its order making enhancement to the income determined by the Assessing Officer is based on the unsworn statement obtained under Section 133A. No substantial question of law arise for consideration and the Tax Case Appeal stands dismissed.
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2013 (3) TMI 289
Recovery proceedings - as per dept. stay ordered by the appellate authority remained in force only till 31st August 2012 thus direction in Ext.P9 order that the recovery proceedings are now initiated - Held that:- Since the petitioner has already remitted 50% and since the appeal is still pending consideration of the 2nd respondent, no reason why the petitioner should be compelled to pay any more amount, pending disposal of the appeal. Therefore, this writ petition disposed directing that the proceedings for recovery of the balance amount due from the petitioner under Ext.P1 assessment order, will be kept in abeyance, pending disposal of Ext.P4 appeal.
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2013 (3) TMI 288
Rectification u/s 154 - provision for gratuity amounting was added back in the computation of taxable total income which according to the respondent had been omitted to be disallowed while processing the return under Section 143(1) and the consquential levy of additional tax confirmed - Held that:- A notice was issued to the assessee under Section 154 calling upon the assessee to file their objections for the proposed revision but the assessee did not file any objection to the said revision and on the other hand, the disallownace of the gratuity provision was accepted by the assessee. Therefore, the levy of additional tax is only a consequential event to the prima facie adjustment, which was carried out through the order passed under Section 154. The Assessing Authority had rightly levied the additional tax by his order under Section 154 as when the rectification of mistake was carried out by making disallowance of gratuity provision and the same has not been objected by the appellant, the consequential levy of additional tax, which is only a sequence to the prima facie adjustment also cannot be objected by them. It is not the case of the appellant that the rectification of the mistake was carried out solely for the purpose of levying additional tax. As in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008 (9) TMI 11 - SUPREME COURT) the scope and meaning of the words "mistake apparent on the face of the record" was considered & a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record. Thus applying the said principle of law to the case on hand no merits in the appeal filed by the assessee challenging the order imposing additional tax liability which came to be levied only as a consequential event of the disallowance of the provision for gratuity which admittedly was accepted by the assessee and not challenged - against assessee.
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2013 (3) TMI 287
Annual maintenance contracts (AMC) - liable to TDS u/s 194C OR u/s 194J - TDS survey u/s 133A was carried out from 08-09-2008 to 16-09-2008 at the premises of the assessee - can TDS be once again recovered where the proper tax has been paid by the payees on such income? - Held that:- Perusal of annual maintenance contract between assessee and M/s Mcnally Bharat Engineering Company Ltd, OTIS Elevators, it is noticed that the AM contractor shall carry out all repairs as per detailed description in the agreements. It is not found that these contracts were in respect of managerial or technical or consultancy services. Thus, it is clear that these agreements were related to annual maintenance of machineries and not for technical services. The revenue's view that the contractors have utilized services of technical persons presumed that the assessee made payments for technical services is not acceeptable as it may be technical services for contractor but not for the assessee. The case of assessee is simply a case of annual maintenance of machineries for section 194J is not applicable. Pilotage Contract - liable to TDS u/s 194C OR u/s 194J - Held that:- On perusal of relevant agreement the assessee has engaged pilots on contract basis for Kandla Pilotage operation on periodical basis who will be treated as an employee of Kandla Port Trust from time to time. The pilots engaged for Kandla, Vadinar will be available for pilotage job at either place in exigencies. The payment is provided to be made for days. He is available for pilotage operation. The other condition in the agreement are in respect of engagement of initial period, termination of the contract by giving one month notice, accommodation, medical facilities, etc. concludes that the payment to pilots is in the nature of salary as their contracts agreement were not for managerial and technical or consultancy services and not covered by section 194J. Taxi & Tug Hire Charges - liable to TDS u/s 194C OR u/s 194(I) - Held that:- The assessee entered into agreement with Thakkar Travels for hiring of vehicles where it is provided that the rates at which the payments will be made for normal running of 12 hours from time of reporting and for deployment beyond 12 hours. In the agreement nowhere it is stated that the possession of the vehicles were given to the assessee. As in case of Vodafone Essar Ltd vs DCIT (2010 (12) TMI 842 - IAT, MUMBAI while dealing with section 194I held that merely making use of the facility without himself using the equipment and without taking possession the payment cannot be said to be a rent - not liable u/s 194(I). Alternative contention of the assessee is acceptable relying on Hindustan Coca Cola Beverages Pvt Ltd vs CIT [2007 (8) TMI 12 - SUPREME COURT OF INDIA]wherein held that if payee has already paid tax due on the payment received by him from the assessee, the tax could not be recovered once again from the deductor. The assessee has furnished the list of such pilots along with their PAN - appeal in favour of assessee.
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Customs
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2013 (3) TMI 286
Detention of car imported from abroad through the Cochin Port - son of the petitioner who imported the car quite unfortunately lost his life in the meanwhile, and survived by the petitioner alone, who is his mother - respondent denied to release the car in the absence of any proper and valuable of the certificate to establish the legal heirship - Held that:- As appellant submits that the petitioner is ready to satisfy any condition to be imposed by the respondent, if necessitated, thus the attempt made by the petitioner is quite transparent and is to have the vehicle released without the necessity to pay unnecessary demurrage charges to the Port, submits the learned counsel. The respondent thus directed to finalise the proceedings with regard to the fact whether any duty is payable in accordance with law & vehicle shall be released to the petitioner on the strength of the proceedings already filed, including the death certificate of the deceased son who imported the vehicle and also on satisfaction of a Bank guarantee. The proceedings shall be finalised at any rate within a period of 'two weeks' from the date of receipt of a copy of the judgment.
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2013 (3) TMI 285
Project Import - Classification of Goods - Actual User Condition- Recovery of concessional Duty - Importer had submitted the final reconciliation statement after lapse of Time - Appellant imported units of Heat Recovery Steam Generator (HRSG) and accessories, the assessee furnished certificate of the Chartered Engineer certifying installation of the impugned goods imported under Project Import Regulations (PIR) for claiming exemption in duty but after lapse of time - Held that:- Regulation 7 prescribed a condition which did not govern the eligibility of the goods imported under PIR for concessional assessment. Thus in accordance with Regulation 7 : Finalisation of contract - The importer shall within three months from the date of clearance or within such extended period, submit a statement indicating the details of the goods imported. Thus Once the imported equipment was installed the benefit could not be denied for the failure to fulfil the conditions prescribed under Regulation 7 of PIR as decided by so many cases of Tribunal like Polyplex Corporation Limited v. C.C.E (2007 (2) TMI 14 - CESTAT,NEW DELHI) and many more.
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Corporate Laws
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2013 (3) TMI 284
Winding up - Circumstances in which a company may be wound up – The petitioner-foreign company-VTL filed a petition for winding up of appellant company for outstanding dues payable towards price of goods supplied Rosebys Operations Ltd a 100% subsidiary of the appellant-Company - As per petitioner the appellant company committed the breach of guarantee, requiring the original petitioner to institute a suit against the company in High Court of Justice, Queen's Bench, Manchester, United Kingdom for recovery of the amount with interest - Appellant argued that it is capable to discharge its dues thus need not to be wounded & guarantee on the basis of which the dues were claimed was not approved by Reserve Bank of India as required under the Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2004 & also judgment by the Court of Queens Bench was an ex parte judgment and not enforceable in India - Whether winding up petition against appellant company on basis of judgment of UK Court was maintainable? - Held that:- A perusal of copy of judgment and decree of UK Court dated 20-11-2008 which is on record of the petition, shows that it was an ex parte decree. A suit in Indian Court shall not lie on basis of foreign judgment covered by section 13 of CPC as Clause (b) of Sec. 13 CPC says that a foreign Judgment shall not be conclusive where it has not been given on merit. As in the present case, it is seen that the UK Court judgment relied on for the purpose of the debt claimed as due in the winding up petition cannot be treated as conclusive in view of clear application of clause (b) and clause (d) of section 13. What emanates from the provisions of section 13 is that on the basis of a foreign judgment and decree covered under any of the clause of section 13 CPC, a suit in an Indian Court shall not lie to enforce the dues or a claim flowing. As in Smt. Satya (1974 (10) TMI 83 - SUPREME COURT) and the position of law in which the Foreign Judgment is a subject matter, if any of the clauses of section 13 of the CPC applies to the Foreign Judgment, it is not to be treated as conclusive. Thus, it cannot be gainsaid that under the company jurisdictions also, the principles of sec. 13 will apply. Therefore, it is clear that the above mentioned UK Court judgment being ex parte and being not on merits, the same stands covered under clause (b) and clause (d) respectively. The same is not conclusive and do not have any binding effect in the Courts in India. In view of regulation 6, the deed of guarantee relied on by VTL is not approved by the Reserve Bank of India. Not only that, in its nature, it is open-ended guarantee in favour of a foreign company, which is prohibited in terms of the Regulation 6. It is in this context that clause (f) of section 13 of CPC gets attracted, when it provides that a foreign judgment can not be a conclusive judgment where it sustained a claim founded on breach of any law in force in India. It is well settled that the proceedings of winding up is not a recovery proceeding. Once it is demonstrated that the debt is subject to a bona fide dispute, the Court will not order for winding up. Thus, the appellant company has been able to raise a bona fide dispute and substantial defence. That being so, it cannot be said that it has failed or neglect to pay the dues claimed by the respondent. The winding up petition having been found to be devoid of merits, the company petition stands dismissed.
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Service Tax
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2013 (3) TMI 295
Delay in filling appeal - demand of service tax - Held that:- As against the earlier provision enabling filing of an appeal within three months, the said period has now been reduced to two months. Similarly, the provision enabling condonation of delay of three months also has been reduced to one month and Ext.P5 order leaving a service tax was issued by the second respondent on 18.09.2012, which is after the insertion of Section 3A extracted above. Thus this is a case where the petitioner has failed to file the appeal within the time as specified in Section 85 (3A) and if that be so, no fault can be filed with the first respondent in not having accepted the appeal filed beyond the periods specified in the Act. Therefore, it is obvious that the petitioner having lost to the appellate remedy on account of his own latches cannot seek to challenge Ext.P5 in a proceedings under Article 226 of the Constitution of India. See Assistant Commissioner of Central Excise v. Krishna Poduval (2005 (10) TMI 279 - KERALA HIGH COURT) - against assessee.
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2013 (3) TMI 294
Benefit of abatement of 67% denied - Service tax demanded under the category of "commercial or industrial construction services and construction of residential complex services" - condition for taking up the appeal is that there must be a pre-deposit of the amount in full - Held that:- It is to be noted that when once appeal is filed by the aggrieved person against the original order, it is mandatory requirement under Section 35-F of the Act to pay the entire amount ordered by the original authority, as a condition precedent for taking up the appeal. Law is well settled that the capacity of a party to pay the pre-deposit amount had to be noticed and the financial burden and undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. As decided in Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai (2008 (12) TMI 215 - HIGH COURT OF JUDICATURE AT MADRAS the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. In this case, a sum of ₹ 38,99,288/- as service tax, with interest, penalty, etc., were levied by the original authority, and thereafter, in the appeal stage, the petitioner was called for personal hearing on 18.1.2013, on which date, the petitioner did not send their official, and therefore, the first respondent passed the impugned order, reducing the amount to ₹ 19,50,000/- as pre-deposit amount, and the prima-facie case, balance of convenience, undue hardship and financial burden, which were focussed by the petitioner, had been duly considered by the first respondent in accordance with law, while reducing the amount of pre-deposit to ₹ 19,50,000/-, which is approximately 50% of the total amount due, and therefore, such a lenient approach made by the first respondent, cannot be called in question in this Writ Petition by the petitioner, particularly, when there is no substantial hardship made out by the petitioner. Such an approach made by the petitioner to file this Writ Petition challenging the order of pre-deposit, is no way called for interference by this Court, and therefore, the Writ Petition deserves no merit consideration, which is liable to be dismissed.
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2013 (3) TMI 293
Pre-condition for depositing the entire amount towards service tax, with interest, penalty, etc. to hear the appeal - Service tax demanded under Survey and exploration of mineral services - Held that:- It is to be noted that when once appeal is filed by the aggrieved person against the original order, it is mandatory requirement under Section 35-F of the Act to pay the entire amount ordered by the original authority, as a condition precedent for taking up the appeal. Law is well settled that the capacity of a party to pay the pre-deposit amount had to be noticed and the financial burden and undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. As decided in Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai (2008 (12) TMI 215 - HIGH COURT OF JUDICATURE AT MADRAS) the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. In this case, a sum of ₹ 47,93,469/- as service tax, with interest, etc., were levied by the original authority, and thereafter, in the appeal stage, the first respondent passed the impugned order, reducing the amount to ₹ 4 lakhs as pre-deposit amount, and the prima-facie case, balance of convenience, undue hardship, financial burden, etc., which were focussed by the petitioner, had been duly considered by the first respondent in accordance with law, while reducing the amount of pre-deposit to ₹ 4 lakhs, and therefore, such a lenient approach made by the first respondent, cannot be called in question in this Writ Petition by the petitioner, particularly, when there is no substantial hardship made out by the petitioner. Such an approach made by the petitioner to file this Writ Petition challenging the order of pre-deposit, is no way called for interference by this Court, and therefore, the Writ Petition deserves no merit consideration, which is liable to be dismissed.
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Central Excise
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2013 (3) TMI 292
Notification NO. 10/2002-CE - benefit denied as IC engines which were captively consumed in the manufacture of PD pump sets cleared by availing the benefit of Notification No. 6/2002 - appellants' contented that the appellants are reversing the credit of 8% of the price of the IC engines captively consumed in the manufacture of PD pumps which were cleared by availing the benefit of the Notification - Held that:- Tribunal in the case of Life Long Appliances Ltd. vs. CCE, Delhi- III (2000 (4) TMI 90 - CEGAT, COURT NO. II, NEW DELHI) in the similar situation held that the payment of an amount equivalent to 8% of the price of intermediate product which has gone into manufacture of exempted products is sufficient compliance to the provisions of Cenvat Credit Rules also confirmed by the Hon'ble Supreme Court [2006 (3) TMI 687 - SUPREME COURT] The Revenue is not disputing the fact that the appellants were reversing 8% of the price of intermediate product which had gone into the manufacture of exempted goods. Therefore impugned order is set aside and the appeals are allowed.
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2013 (3) TMI 283
Duty demand on circuit breakers with control panels - whether the Revenue is entitled to make demand under Section 11A of the Central Excise Act retrospectively for a period prior to the date of the classification made in respect of a particular item under Section 37B of the Act? - Held that:- As decided H.M. Bags Manufacturer Vs. Collector of Central Excise [1997 (7) TMI 119 - SUPREME COURT OF INDIA] in a demand under Section 11A of the Act cannot be raised for any date prior to the date of the Board circular and the time limit as provided under Section 11A of the Act is not available to the Department. Thus it is manifestly clear from the above decision rendered that once reclassification Notification is issued, the Revenue cannot invoke Section 11A of the Act to make demand for a period prior to the date of said classification notification also. The reasoning assigned for not following the judgment of the Supreme Court is not acceptable in view of the fact that merely because the assessee has not challenged the earlier order of the Tribunal or the Commissioner, the same cannot be taken as a precedent when already, on the very same issue, the Honourable Supreme Court decided in favour of the assessee. Therefore, the Tribunal is bound to follow the decision of the Honourable Supreme Court in preference to the decision of the Tribunal, though such decision has become final, in so far as the assessee is concerned - in favour of the assessee.
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2013 (3) TMI 282
Rectification of mistake perceived in 2012 (8) TMI 596 - CESTAT, NEW DELHI - as per department the applicants had taken credit based on invoices dated earlier to 10-9-2004 - Held that:- The present applicant is a manufacturer of excisable goods. Till 10-9-2004 credit of service tax on input services used in manufacture of excisable products was not available. Such credit was extended for the first time by Cenvat Credit Rules, 2004. When such credit was extended a restriction was put that such credit would be extended only in respect of service tax paid on invoices raised on or after 10-9-2004. Dispute relating such circumstances was not before the Division Bench in the case of Idea Mobile Communications Ltd [2011 (11) TMI 423 - CESTAT, NEW DELHI] as relied by assessee so not to accept the argument of the applicant that the issue decided by final order dated 11-11-2011 [2012 (8) TMI 596 - CESTAT, NEW DELHI] was capable of two interpretations. The provision in Rule 9(1)(f) is plain and simple and the credit taken by the applicant was in contravention of the provision without disclosing the fact that the credit was taken against invoices dated earlier than 10-9-2004. So there is no error in the finding in order dated 11-11-2011 in the matter of invoking extended period of time and hence no mistake to be rectified in the order - the present application is basically one for re-appreciation of facts - reject the application for rectification of mistake.
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2013 (3) TMI 281
Seeking option of paying 25% of penalty under Section 11AC of the Central Excise Act, 1944 - Held that:- Order-in-Original came to be passed on 22-2-2006. Admittedly, at that point of time the benefit of the proviso was not given to the applicant. The applicant in its appeal before the Commissioner (Appeals), did not make any grievance with regard to non-grant of the said benefit, nor did it deposit the amount of duty with interest and 25% of the penalty as envisaged under the said proviso within a period of thirty days from the date of communication of the Order-in-Original. Under the circumstances, the said point was never at issue in the appeal before the Commissioner (Appeals). In the appeal before the Tribunal against the order of the Commissioner (Appeals) also, the said contention does not appear to have been raised and the order of the adjudicating authority as confirmed by the Commissioner (Appeals), appears to have been assailed only on the point of limitation. Thus, such issue never came up for consideration either before the Commissioner (Appeals) or the Tribunal. Since such issue was never raised before the Tribunal, there is no discussion in this regard in the order of the Tribunal. Consequently, such question did not arise out of the impugned order of the Tribunal and as a natural corollary, no such question was framed by this court while admitting the appeal and deciding the same. Even before this court, such issue was never raised nor was any request made for framing a question of law in this regard. No request was made for grant of the benefit under the proviso to Section 11AC of the Act at the time when the appeal was being allowed. Under the circumstances, no such relief had been granted to the applicant. The said issue is, therefore, a debatable one. Thus, the relief claimed by the applicant in the present application involves a debatable issue as to whether such relief could be granted by the court in a tax appeal wherein no question of law had been formulated in respect of the issue involved in the present case. Thus, the said decisions have been rendered in appeals wherein such controversy was directly in issue, which is not so in the facts of the present case. Under the circumstances, in the light of the provisions of Section 35G of the Act and more particularly, sub-section (4) thereof, which postulates that the appeal shall be heard only on the question so formulated, this court is of the view that the applicant is not entitled to the relief prayed for in the present application.
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2013 (3) TMI 280
Inclusion of rental charges in respect of crate to the MRP - Held that:- This issue is already settled by the Tribunal in the applicant's own case in HINDUSTAN COCA-COLA BEVERAGES P. LTD. Versus CCE ALLAHABAD (2006 (3) TMI 392 - CESTAT, NEW DELHI) against the Revenue. Accordingly, the pre-deposit of dues is waived and recovery of the same is stayed during pendency of the appeal. Stay petition is allowed.
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2013 (3) TMI 279
MODVAT/CENVAT credit on inputs - Removal as such without payment of duty - Recovery u/s 11D - Penalty u/s 11AC - extended period of limitation - held that:- assessees that they cannot be held guilty of suppression or misstatement as regards non-reversal of credit for the reason that they are handling vast quantity of steel every year for manufacturing activities and issuing approximate quantities to sub-contractors, who are executing the works within the factory. - it was not practically possible to expunge the credit as and when the materials are issued to civil works. - No penalty u/s 11AC - However, penalty of Rs. 10,000/- is upheld as the assessees had not submitted relevant details in their monthly return. - Partly in favor of assessee Demand u/s 11D - recovery of cenvat credit reversed - held that:- in the light of the decision of the Larger Bench of the Tribunal in Unison Metals Ltd. v. Commissioner of Central Excise, Ahmedabad - [2006 (10) TMI 171 - CESTAT, NEW DELHI], Section 11D is not applicable since the amount of 8% or 10% has already been paid to the Revenue and no amount is retained by the assessee. - Decided in favor of assessee.
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CST, VAT & Sales Tax
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2013 (3) TMI 297
Detention of a consignment of 36 barrels of lubricant oil - as per the dept. the consignee is not a registered dealer under the KVAT Act and the consignment is bulk quantity of lubricant oil for ship - as per petitioner the goods, having already suffered CST at 14.5%, there was irregularity justifying detention - Held that:- Unable to see any irregularity justifying detention. Therefore left open to the respondents to complete the adjudication in terms of the provisions of the Act and direct that the consignment detained as per Ext.P4 notice of detention under Section 47(2) of the KVAT Act be released,subject to the petitioner executing a bond without sureties.
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2013 (3) TMI 296
Revision of Assessment order - Tamilnadu General Sales Tax Act, 1959 - as per the assessee when Watery Coconuts have been declared as a commodity exempted from the levy of sales tax, it is not open to the respondent to levy such tax in an indirect manner - as per the department period of limitation would not apply to the present case - Held that:- It is not in dispute that the impugned notice issued by the respondent and the consequential order passed thereon are beyond the period of five years from the date of the initial assessment order. While so, it would not be open to the respondent to claim that the petitioner is not entitled to raise the plea of limitation when the matter had been remitted back by this Court, by its order, dated 30.1.2012. It cannot be claimed that the period of limitation would not apply in respect of cases where an order had been passed remitting the matter back to the authority concerned for considering it afresh. In fact, the orders passed by the respondent, on 3.9.2009, had been set aside by this Court, by its order, dated 30.1.2012, as such orders could not be sustained in the eye of law. Even though this Court had remitted the matter back to the respondent after setting aside the impugned orders, dated 3.9.2009, mainly on the ground that no notice had been issued to the petitioner before passing the said order, the issue relating to limitation had been left open to be raised, by the petitioner, at the appropriate stage. In such circumstances, it is not open to the respondent to claim that the period of limitation would not apply to the present case. As such, it is clear that the impugned notice, dated 20.3.2012, and the consequential order passid by the respondent on 30.5.2012, are liable to be set aside and therefore, they are set aside. Accordingly, the writ petition stands allowed.
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Indian Laws
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2013 (3) TMI 291
Removal from service - imputation against the petitioner was that he had claimed reimbursement, contrary to the Rules - he claimed bills for simultaneous treatment for overlapping periods under Allopathic and Ayurvedic medicines on four-five occasions - Held that:- Petitioner had claimed medical reimbursement contrary to the rules as simultaneous treatment under different streams of medicines was taken by the petitioner and his family members. Moreover, he claimed simultaneous bills for Allopathic, Ayurvedic and Homeopathic treatment of his wife and children on 9-10 occasions. Dr. S.K. Gupta, Medical Officer, Govt. Ayurvedic Dispensary, Hertbertpur, Dehradun, who was the prosecution witness No. 4 in the enquiry, categorically stated that Ayurvedic medicines could not be taken simultaneously with Allopathic and Homeopathic treatment. The petitioner had been regularly claiming bills for some of the chronic diseases from 1982 to 1988. When he was asked to appear before the Medical Board, the petitioner deployed a clever ploy by first denying access to the Medical Board to get his family members medically examined and wriggled out himself of the tight corner by pleading 'no disease'. The petitioner furnished a false information and claimed bills contrary to service rules for which penalty of removal from service was imposed upon him. The petitioner was working in a Nationalized Bank, where the required standard of integrity and honesty is very high. Therefore, the petitioner was expected to act and discharge his duties in accordance with the Rules and Regulations of the Bank. Acting beyond one's authority is by itself a breach of discipline and trust and a misconduct. No interference with the decision of the respondent as it does not shock the conscience of this Court.
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