Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
April 15, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Articles
News
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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TDS u/s 194-H - commission or discount - stamp papers etc. have been sold at a discounted price - such type of discount is trade discount and it is not commission. - No TDS - HC
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Additions u/s 68 - ITAT is wrong in deleting the addition stating that Revenue Authorities failed to consider the assessee's request for calling for information u/s 133(6) or u/s 131 - HC
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Disallowance u/s 43B on account of outstanding luxury tax liability - assessee has not realized the amount of luxury tax - no addition or disallowance u/s 43B - HC
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Sale of the lottery tickets - point of sale - revenue recognition - till the date of the draw or just prior to the date of the draw it cannot be ascertained as to whether the dispatched tickets were actually sold or not - HC
Customs
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Interest on refund excess sale proceeds - The Petitioner has been deprived of a refund of its monies legitimately due to him - Interest allowed at the rate of 9% - HC
Corporate Law
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Company in liquidation - Subletting - The official liquidator is entitled to encash the capital asset and sell the lease hold rights for payment of dues to the creditors/contributories - HC
Service Tax
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Power to freeze account - demand of service tax - the impugned order freezing the Bank accounts is not sustainable in the eye of law as this has been passed without having any jurisdiction. - HC
Central Excise
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Order of CESTAT remanding the matter back - The order smacks of perversity and is violative of principles of natural justice, in that the entire decision is on the ground of the department having questioned the order - HC
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Cenvat Credit of duty paid by the Job worker - No merit in the contention of the revenue that the job workers cannot prefer to pay excise duty in spite of having exemption notification No. 214/86 - HC
VAT
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Cancellation of the registration certificate - suppressed turnover - appeal is pending before the Tribunal - The grounds are not sufficient for cancelling the registration certificate - HC
Case Laws:
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Income Tax
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2013 (4) TMI 293
Benefit of deduction u/s 54F denied - disallowance of benefit of indexation cost of value as on 1.4.1981 and repairs carried out in the premises and investment in capital gain account for purchase of another flat - Stay seeked against demand of principle amount and interest - the assessee/petitioner inherited the premises along with her aunt (grandmother's second daughter) as per the grandmother's will - Held that:- AO has allowed the exemption u/s 54F only with respect to the flat at Sunshine but denied the benefit of indexation cost and exemption with respect to the deposits in capital gain account scheme. CIT(A) confirmed the action of the AO in denying the deduction u/s 54 and granting the deduction u/s 54F & has also confirmed the denial of the benefit of indexation cost of value as on 1.4.1981 as well as the claim with respect to the expenses for improvement/repairs. As regards the Fixed Deposits of Rs. 1.25 crores in the capital gain account, CIT(A) has allowed the claim of deduction u/s 54F in this respect. Thus,allowing part claim of the assessee and the demand is arising in respect of denial of the benefit of indexation cost valued as on 1.4.1981 and the expenses incurred for repairs and improvement of the property. Since these issues require an elaborate discussion and consideration at the time of hearing of the appeal of the assessee and therefore these are debatable issues, which has to be decided after the proper and detail hearing on merit. AO has attached the bank accounts and FD of the assessee, her aunty and the saving bank account of Matheran Sanatorium Trust is not understandable as to how the AO has attached the account of the other persons when the demand in question can be satisfied by the attachment of the bank account of the assessee alone. Thus the assessee has made out a prima-facie case wherein the stay may be granted subject to part payment of the outstanding demand. Accordingly the recovery of balance demand is stayed subject to payment of Rs. 15 lacs by the assessee which is to be paid on or before 28th Feb 2013.
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2013 (4) TMI 292
Disallowance of bad debts - assessee is a member of Bombay Stock Exchange (BSE) and National Stock Exchange (NSE) dealing in shares & securities and earning brokerage income - The assessee has claimed that the brokerage earned on these transactions have been included in the computation of income therefore, the conditions as prescribed u/s 36(2) has been complied with - Held that:- The claim of the assessee, in principle is covered by the decision of in the case of Shreyas S Morkhia (2010 (7) TMI 455 - ITAT MUMBAI). Thus if the brokerage has been included in the income as credited to the P&L Account of the assessee, then the conditions as prescribed u/s 36(2)(i) has been fulfilled as the part of the amount has been taken into account in computing the income of the assessee. In view of these facts AO is directed to allow the claim of the assessee subject to verification of the facts that this amount of bad debt claimed by the assessee is after reducing the amount received from sale of shares, if any held by the assessee on behalf of the clients against whom this amount has been claimed as bad debt as well as whether the brokerage amount was considered in computation of income.
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2013 (4) TMI 291
Assessee in default - TDS u/s 194-H - commission or discount - legality and validity of the order passed by the Income Tax Officer (TDS), Agra passed under section 221(1)/221(1A) whereby the Chief Treasury Officer has been held as assessee in default questioned - allegations of the dept. that the petitioner sells general stamp papers, court fee stamps, copy stamps and other stamps either to the public directly or through licensed stamp vendors at a price less than 1% of the value of such stamps which amounts to 'commission' within the meaning of section 19H - Held that:- The central theme of the impugned order dated 16.12.2003 is that as the stamp papers etc. have been sold at a discounted price, it is nothing but payment of commission to stamp vendors by the petitioner. The impugned order proceeds on the ignorance of the scheme of U.P. Stamp Rules as also the difference in between the commission and discount. Similar kind of controversy was up for consideration before this Court in the case of Jagran Prakashan Limited (2012 (5) TMI 488 - ALLAHABAD HIGH COURT) where it was a case of publisher of newspaper engaged in the business of printing and publishing newspapers 'Dainik Jagran' and 'Eye Next' from different places across the country. It was giving trade discount to the advertisers who used to bring advertisements for the newspapers. The newspaper publisher used to charge less advertisement charges from a category of persons who are the members of Indian Newspapers Society. The Income Tax Department treated the newspaper Dainik Jagran as assessee in default as it failed to deduct the tax at source on the differential amount which according to the department was commission paid to such advertisers. This Court on the consideration of various judgements of the Apex Court has held that such type of discount is trade discount and it is not commission. By applying the ratio of the aforesaid decision and keeping in mind that the nature of transaction discount under Rule 161 is not payment of commission directly or indirectly but it is a discount. Therefore the impugned order has been passed without taking into consideration the relevant facts and is illegal. Also in similar set of facts CIT (A)-II, Kanpur has held that the provisions of 194-H are not attracted in the case of stamp vendors on the sale of stamp papers etc. to licensed vendors as per the U.P. Stamp Rules, 1942 deserves for acceptance and this decision should have been followed in absence of any material otherwise by the respondent no.2 who is below the rank of CIT (A). In the result, the writ petition succeeds and is allowed. The impugned orders declaring assessee in default are quashed - in favour of assessee.
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2013 (4) TMI 290
Assessment of share capital in the hands of assessee - Whether share holders being existing natural persons, their investment to the share capital of the appellant could be added to the income of the appellant - Held that:- There appears to be some confusion with regard to the figure whether it is Rs. 3,80,000/- or Rs. 3,08,000/-. In different orders, different figures have been mentioned. Relying on Commissioner Of Income Tax Versus Steller Investment Ltd. [2000 (7) TMI 76 - SUPREME COURT] the aforesaid amount represents the share application money and the investors are known persons, there was no justification for making an addition of Rs. 3,08,000/- in the hands of the assessee as unexplained investment. The order of the Tribunal is faulty. The same is hereby set aside and it is held that the addition of Rs. 3,08,000/- made in the hands of the appellant could not have been added. It is deleted - in favour of assessee.
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2013 (4) TMI 289
Additions u/s 68 - assessee respondent is a partnership firm - ITAT deleted the addition stating that Revenue Authorities failed to consider the assessee's request for calling for information u/s 133(6) or u/s 131 - Held that:- The Tribunal has not applied its mind to the various aspects of the case and has allowed the appeal of the assessee by making general remarks. The Tribunal being last fact finding authority should have considered the evidence and material produced by the respective parties in support of its findings. The order of Tribunal is far from satisfactory and therefore, the same cannot be allowed to stand. Also the department submits that in view of the aforesaid judgment of this Court in the case of Jagmohan Ram Ram Chandra (2004 (8) TMI 46 - ALLAHABAD HIGH COURT) the finding recorded by the Tribunal is unjustified wherein held that if an assessee, who is a partner in the partnership firm, has made investments which are not recorded in the books of account maintained by him for any source of income and the explanation given by the partner or individual regarding the source of deposits is disbelieved, then such deposits which are investment can be brought to tax as income from undisclosed sources under section 69. Thus remanding the matter back to the Tribunal to decide the appeal afresh in the light of observations made above keeping in view the ingredients of section 68 and other relevant provisions - in favour of revenue for statistical purposes.
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2013 (4) TMI 288
Applicability of provisions of Section 43B denied - whether the Tribunal was correct in holding that provisions of Section 43B are not applicable although, the payment has been made after the close of the accounting year? - assessee is a registered firm derived income by running a cinema house - Held that:- The controversy stands concluded against the department as decided in Allied Motors(P) Ltd. versus Commissioner of Income Tax [1997 (3) TMI 9 - SUPREME COURT] wherein it has been held that if the tax is so collected and deposited even after the expiry of the accounting year but on the due date, the deduction cannot be disallowed under section 43-B. Also see Commissioner of Income Tax versus Krishna Satya Narain (2004 (12) TMI 71 - ALLAHABAD HIGH COURT) - in favour of assessee.
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2013 (4) TMI 287
Entitlement to claim a deduction made u/s 80 HHC - sales made to foreign tourists against foreign currency, including counter sale - Held that:- The controversy involved in the present appeal stands concluded by the judgment of in the case of Ram Babu and Sons (1996 (5) TMI 61 - ALLAHABAD HIGH COURT). The said judgment has been approved by the in the case of Commissioner of Income Tax v. Silver & Arts Palace [2002 (12) TMI 12 - SUPREME Court] wherein held that Section 80HHC Explanation (aa) explains what is "export out of India". Any transaction by way of sale or otherwise in a shop or emporium which does not involve clearance at a customs station as defined in Customs Act, 1962, is thereby excluded from the expression "export out of India". There is no dispute between the parties that the transactions of counter sales effected by the respondent involved customs clearance within the meaning of Explanation (aa) to Section 80HHC(4A) and further that the sales were in convertible foreign exchange. In view of the above, the Tribunal was not correct in treating the counter sale to foreigners against foreign exchange as not export sale. It is held that such sales are export sales i.e. within the meaning of Explanation (aa) to Section 80HHC (4A) of the Act. The Tribunal was not right in not extending the benefit of Section 80HHC to counter sales made to foreign tourist against foreign currency. In this respect, the order of the Tribunal is set aside - in favour of the assessee.
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2013 (4) TMI 286
Disallowance u/s 43B on account of outstanding luxury tax liability - whether ITAT corrected in directing the A.O. to work out the disallowance on the basis of actual realisation of the luxury tax and not on the basis of unrealised luxury tax although the assessee was maintaining its accounts under mercantile system - Held that:- The Act imposes tax on income. The word 'income' has been defined under Section 2 (24) of the Act. Scope of total income has been provided under Section 5 stating total income of any previous year of a person, who is resident includes all income from whatever source derived which (a) is received or is deemed to be received in such year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year or (c) accrues or arises to him outside India during such year. Thus in order to form income of a person, the person must receive or deemed to receive any sum. The amount of luxury tax which was not received cannot form part of the income of any person. Section 43B of the Act is concerned with deduction claimed by the assessee. It does not caste duty on the assessee to realize the various amounts mentioned in it. In case, where a person has not realized luxury tax from the customers then under the law he being liable to pay it and it will be realize from him under the relevant law irrespective of the fact that he has collected or not. But it does not give the Assessing Officer any jurisdiction to add it in the gross income of the assessee. CIT (A) as well as the Tribunal have concurrently found that the respondent has not realized the amount of luxury tax, which was added in his gross income. The case laws relied upon by the counsel for the Revenue are not applicable in this case as in those cases the assessee had actually collected the amount of sales tax and has not paid to the Department - the question referred is answered in the affirmative i.e. against the Department and in favour of the assessee.
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2013 (4) TMI 285
Dis-allowance of prior year expenses as the assessee has been following mercantile system of accounting - Held that:- Merely because an expense relates to a transaction of an earlier year it does not become a liability payable in the earlier year unless it can be said that the liability was determined and crystallized in the year in question on the basis of maintaining accounts on the mercantile basis. In each case where the accounts are maintained on the mercantile basis it has to be found in respect of any claim, whether such liability was crystallized and quantified during there previous year so as to be required to be adjusted in the books of account of that previous year. There is no finding as to why the liability for the expenses accrued to the appellant by any of the authorities. It is the case of the appellant that liability for expenses for which claim was made in the profit and loss account of the year under consideration had crystallized only during the year and as such, no claim towards the same was made in the account of the earlier years. There is also no finding as to why the claim of the appellant for prior years for the reasons aforesaid was not allowable. Under these circumstances, the matter remitted back to the Tribunal for recording a finding of fact as to whether the expenditure which has been claimed by the assessee in the revised computation of income has actually been crystallized during the assessment year under consideration, after giving opportunity of hearing to the parties concerned.
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Customs
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2013 (4) TMI 283
Seizure U/s 110 - Valuation - Provisional release of goods U/s 110-A of the Customs Act, 1962 - Held that:- Section 110-A of the Customs Act, 1962 provides for provisional release of goods, documents and things seized pending adjudication. Any goods, documents or things seized under Section 110 of the Act, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require - The only reason for non-releasing of the goods is that the petitioner has under-valued the goods in question. The respondents, on investigation, found that the differential duty has to be paid even for the provisional release of the goods. The investigation has to be completed and thereafter, the adjudication has to be done for the assessment of the value. In the light of the legal position and as the goods in question are not prohibitory items under the provisions of the Act and considering the facts and circumstances of the case, provisional release of the goods in question, is ordered with the following conditions: - i) The petitioner shall deposit with the customs authorities the duty payable on the value declared by them - ii) The petitioner shall deposit with the customs authorities 50% of the differential duty - iii) The investigation is yet to be completed and the adjudication has also to be done. Therefore, it is needless to state that this order shall not stand in the way of the respondents to proceed with the investigation and also the adjudication process. In such an event, the petitioner shall co-operate with the respondents for conclusion of the investigation as well as the adjudication proceedings. The Writ Petition is disposed of - No costs - Consequently, the connected miscellaneous petition is closed.
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2013 (4) TMI 282
Interest on refund excess sale proceeds - Refund of balance after adjustment of expenses and charges U/s 150 of the Customs Act, 1962 - Held that:- It can be no defence to urge that the Customs Act, 1962 provides for the payment of interest only in respect of a refund of duty and interest and hence the Petitioner would not be entitled to interest on the balance of the sale proceeds which were directed to be paid by the Settlement Commission. The Petitioner has been deprived of a refund of its monies legitimately due to him in pursuance of an order of the Settlement Commission. There is absolutely no reason or justification for the unexplained delay. Hence, in exercise of the jurisdiction of this Court under Article 226 of the Constitution, an order awarding the payment of interest would be necessary. Interest allowed at the rate of 9%, revenue directed to pay the interest within a period of eight weeks.
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Corporate Laws
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2013 (4) TMI 281
Company in liquidation - Condonation of delay - Subletting - Being inheritors of the original lessors - the official liquidator attempted to sell/dispose of the lease hold rights - Held that:- It is clear to us that the contracts in question i.e. the Registered Permanent Lease Deeds dated 23.03.1918 and 03.11.1927 permit and allow the lessee to assign and transfer their rights Acquisition of the lease hold rights in question by the company under liquidation was for value and consideration paid to the earlier lessee - The official liquidator is entitled to encash the capital asset and sell the lease hold rights for payment of dues to the creditors/contributories - The lease hold rights have market value is apparent and established from the fact that auction was held and bids were received - To restitute or return the land in question to the appellants will result in dissipation of an asset of considerable value, to the detriment/loss of the creditors/contributories. Normally an auction purchaser would acquire the lease hold rights with the stipulation or covenants in the perpetual lease. This would not affect the rights of the lessor under the lease deed, subject of course to statutory protection, if any, to the new lessee/purchaser - We do not find any reason to issue notice on the application for condonation of delay - The application for condonation of delay and the appeal are dismissed.
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2013 (4) TMI 280
Defendants did not refund the excess amount to the plaintiff despite repeated requests - Recovery along with interest @18% per annum - Held that:- Having heard the learned counsel for plaintiff and having perused the ex parte evidence as well as the documents placed on record, this Court is of the opinion that plaintiff has proved the facts stated in the plaint and also exhibited the relevant documents in support of its case. Since the plaintiff’s evidence has gone unrebutted, said evidence is accepted as true and correct. Consequently, present suit is decreed for a sum of Rs.36,13,913.50/- in favour of the plaintiff company and jointly and severally against the defendants along with interest @18% per annum from the date of filing of suit till its realization and costs - Registry is directed to prepare decree sheet accordingly.
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2013 (4) TMI 279
Appointment of arbitrator U/s 11(6) - Whether period of 30 days is mandatory or not - The respondent made the appointment before the appellant filed the application U/s 11 but the said appointment was made beyond 30 days - Held that:- The Hon'ble Chief Justice or his designate cannot decide under section 11(6) of the Arbitration & Conciliation Act, 1996 as to whether the appointment of the arbitrator already made by the respondents in terms of the arbitration agreement is valid or illegal - The fact remains that the respondents have already appointed arbitrator, may be after expiry of thirty days of receipt of notice invoking arbitration clause by the applicants - The question as to whether such appointment is in terms of the agreed procedure prescribed in the arbitration clause or not. In my view touches the jurisdiction of the arbitrator which cannot be decided by the Hon'ble Chief Justice or his designate under section 11(6) of the Arbitration Act, 1996 - Such issue of jurisdiction in respect of the arbitrator appointed by the respondents can be raised before the arbitrator himself by making application U/s 16 of the Arbitration & Conciliation Act, 1996 - It is made clear that this court has not expressed any views as to whether the arbitrator appointed by the respondents is validly appointed or not and the said issue is kept open. No order for appointment of the arbitrator can be passed in this proceedings - The application is disposed of in the aforesaid terms - It is made clear that other issues which touches the jurisdiction of the arbitrator already appointed by the respondents are also to be decided by the learned arbitrator under section 16 of the Act.
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Service Tax
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2013 (4) TMI 296
Refund claims in respect of inputs service credit in terms of Notification No. 41/07 dated 6.10.07 denial on the ground of lack of jurisdiction - Instead of filing an appeal against order of Asstt. Commissioner, Delhi on the ground of jurisdiction the appellant filed fresh refund claim before Asstt. Commissioner of Central Excise, Sonepat who rejected the refund claim on the ground of limitation - Held that:- Fully agreeing with the observations and findings arrived at by Commissioner (Appeals) that Asstt. Commissioner, Sonepat was not having jurisdiction to reopen the proceedings concluded at the level of Asstt. Commissioner, Delhi. Whether the order of Asstt. Commissioner, Delhi was right or wrong, was required to be adjudged by the higher appellate forum. The appellants plea that the Asstt. Commissioner, Delhi ought to have transferred the papers to Asstt. Commissioner, Sonepat for further action instead of rejecting the same cannot be appreciated inasmuch as the Asstt. Commissioner, Delhi having passed the orders rejecting the refund claim, it was not open to the appellants to adjudge the correctness of the same. The proper course of action was to file the appeal against the above on the said ground. Having not done that, the findings of Commissioner (Appeals) that Asstt. Commissioner, Sonepat was not authorised to reopen the proceedings and to reconsider the same when their claim finally stand concluded by the Asstt. Commissioner Delhi cannot be faulted. Thus no infirmity in the impugned order of the Commissioner (Appeals) the appellant will not be entitled to refund of Service Tax credit inasmuch as the same stand denied to them by the order of AC, New Delhi.
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2013 (4) TMI 295
Eligibility for the benefit of Notification No. 12/2003-S.T., dated 20-6-2003 denied - as per AO assessee were also not eligible for paying service tax under the category of works contract - assessee was paying service tax under the category of “Commercial and Industrial Construction” services with effect from 16-6-2005 up to 30-6-2007 and thereafter started paying under the category of works contract - Held that:- The Commissioner has confirmed the demand treating the amounts mentioned as “receivables” as service charges received by the appellant which is erroneous as the service tax is liable to be paid on actual amounts received and not on amounts which may be receivable and not yet received. Also the appellants have executed orders worth about Rs. 20 crores and they claim that value of goods involved in rendering of the said services is over Rs. 13 crores. Commissioner has totally disallowed the claim for deduction of value of goods as he has taken the entire value of Rs. 20 crores as value of services rendered. It is not disputed that the appellants have paid VAT on goods valued about Rs. 13 crores. Further, for the period prior to 1-6-2007, the denial of benefit of Notification No. 12/2003 may not be justified in the light of documents submitted by the assessee which contained detailed specifications and value of the material supplied/utilized while rendering the services. Undisputedly, the appellants have paid service tax of Rs. 18,42,993/- which according to them was payable after availing the benefit of Notification No. 12/2003 and under works contract from 1-6-2007. Thus the appellant has made out a case for waiver of balance of dues.
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2013 (4) TMI 294
Power to freeze account U/s 87 of the Finance Act, 1994 - Held that:- Going by the language of Section 87 of the Finance Act that any amount payable means that amount adjudged after hearing the show cause notice and this provision of Section 87 is one of the methods of recovery of the amount due and payable after adjudication is done. Moreover, I find from the language of clause (b), there is no power to freeze the Bank accounts. At the most, if it is applied, the money can be claimed from the Bank itself. Such claim can be made only when the final adjudication has been done after quantifying the amount due and payable by the assessee. Under the circumstances, I hold that the impugned order freezing the Bank accounts is not sustainable in the eye of law as this has been passed without having any jurisdiction. The same is accordingly set aside. Taking totality of the fact of the case, I pass following order. I also make it clear in the event, no reply is submitted within the above time, appropriate authority may pass appropriate order in accordance with law after quantification of the amount due and payable. Of course, it would be open for the respondent authority, if so advised, to issue orders strictly in terms of Section 87 Clause (b) of the Finance Act 1994 for recovering the amount by issuing a fresh order after adjudication - The writ petition is allowed.
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Central Excise
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2013 (4) TMI 278
Writ petition against the decision of CESTAT remanding the matter back - principal of natural justice - alternative remedy of appeal under Section 35G - held that:- With the greatest of respect to the learned Tribunal, it is absolutely shocking that an appeal should be remitted on the sole ground that the Department had questioned the legality and the propriety of the order impugned. The earlier order dated 8th January, 2008 of the learned Tribunal, on which reliance has been placed, was an order by consent in a case where both the department and the assessee had appealed. The order impugned smacks of perversity and is violative of principles of natural justice, in that the entire decision is on the ground of the department having questioned the order. It is unfortunate that the learned Tribunal should have converted itself to a departmental Tribunal giving total go by to the principles of fair play in action. The impugned order is set aside and quashed. The Tribunal shall decide the appeal afresh in accordance with law expeditiously preferably within two months from the date of communication of this order.
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2013 (4) TMI 277
Cenvat/Modvat Credit of duty paid by the Job worker - Whether the job workers can prefer to pay excise duty in spite of having exemption notification bearing no. 214 of 1986 - Held that:- By relying upon a three-judge-bench decision of the Supreme Court in the case of International Auto Ltd. v. Commissioner of Central Excise, Bihar (2005 (3) TMI 132 - SUPREME COURT OF INDIA), submitted that the questions so raised by the Revenue are fully answered by the Supreme Court in the above decision and the selfsame principle has been followed by the Tribunal. There is no dispute that according to the modvat scheme, it is the modvat of such final product which would have to include the cost of the inputs and in respect of which Modvat credit could be taken at the time of clearance of the final product and thus, in the facts of the present case, the Tribunal rightly rejected the contention of the Revenue that the respondents should have reversed the Cenvat credit taken before sending the goods to the job worker since the job worker had not followed the procedure of job work. No merit in the contention of the revenue that the job workers cannot prefer to pay excise duty in spite of having exemption notification bearing No. 214/86 exempting the job workers from paying duty in view of the mandatory provision of Section 5A(1A) of the Act. - Decided in favor of assessee and against the revenue.
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2013 (4) TMI 276
Pre-deposit a sum of Rs.15,32,499, towards 50% of the demand of Cenvat Credit & 50% of the penalty imposed, U/s 11AC of the Central Excise Act, 1944 by 23.03.2012 - To report compliance of the same, on or before 29.03.2012 - Held that:- The petitioner is directed to deposit a sum of Rs.10,00,000/-, pursuant to the impugned order,passed by the second respondent, dated 24.02.2012, within a period of two weeks from today. The Order-in- Original passed by the Additional Commissioner of Central Excise, shall be stayed, till the disposal of Issue on 22.03.2012 the appeal, in A.No. 119/2011-Try (CE) - On the petitioner complying with the said condition, the second respondent shall hear and dispose of the appeal, in A.No.119/2011-Try (CE), on merits and in accordance with law, as expeditiously as possible - The impugned order of the second respondent, dated 24.02.2012, shall stand modified accordingly - The Writ Petition is ordered accordingly - Connected miscellaneous petition is closed.
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2013 (4) TMI 275
Recovery of erroneous refund - refund of excise duty on bogus and forged documents - writ petition against recovery - alternative remedy - Held that:- when there is adequate efficacious alternative remedy, one cannot normally invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. - the petitioner cannot legally approach this Court seeking the relief as incorporated in the writ petition herein. - this Court cannot invoke its jurisdiction under Article 226 of the Constitution of India to entertain the present writ petition in view of embargo, referred to by the learned counsel for the respondents in the course of her argument - This proceeding is dismissed
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CST, VAT & Sales Tax
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2013 (4) TMI 299
Cancellation of the registration certificate - the petitioner has suppressed its turnover amounting to ₹ 75,00,000/- during the Assessment Year 2009-10 thus a tax of ₹ 3,00,000/- has been imposed - Held that:- The grounds are not sufficient for cancelling the registration certificate for the reasons that in respect of the alleged suppressed turnover of ₹ 75,00,000/-assessed during the Assessment Year 2009-10 , it is not in dispute that the appeal is pending before the Tribunal which is empowered to go into both the questions of fact and law. Thus, the order for the Assessment Year 2009-10 has not yet attained finality and cannot be taken as adverse for cancellation of registration certificate. Three loose papers have been found at the time of survey made on 15th July, 2011 by the Special Investigation Branch which indicates that the petitioner is indulging in suppression of turnover - Held that:- As the proceedings before the Special Investigation Branch, Unit-II, Varanasi had not been concluded and no finding have been returned by the Special Investigation Branch to the effect that three loose papers denote suppressed turnover when the impugned order was passed. Thus, both the grounds taken for cancellation of registration certificate are not sufficient for cancelling the same.
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2013 (4) TMI 298
Application for interim relief - Stay granted to the extent of 70% of the tax amount - Held that:- As decided in I.T.C. Ltd. vs. Commissioner (Appeals), Custom & Central Excise, Meerut-I [2003 (10) TMI 70 - HIGH COURT OF JUDICATURE AT ALLAHABAD] while considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. Keeping in view the settled position of law on the point in issue and from the perusal of the appellate order passed by the appellate tribunal thereby passing the impugned orders, the said authorities have not indicated its mind so far as the existence of the prima facie case on merits on appeal as well as the financial condition which are to be considered by them while passing the impugned orders on an application for stay pending in the first appeal. The said mandatory condition is to be taken into consideration while disposing of an application for interim relief moved by the assessee by the appellate authority as well as tribunal during the pendency of appeal - the present revision is disposed of with a direction to the FAA to decide the appeal filed by the assessee expeditiously say within a period of two months from the date of receiving a certified copy of this order.
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2013 (4) TMI 297
Mercy application for restoration - Held that:- The petitioner was negligently prosecuting the matter. He submitted the restoration application belatedly without showing sufficient cause and thereafter on dismissal of restoration application, again submitted an application for restoration of appeal, without there being any provision for the same. In these circumstances, the petitioner cannot be shown any indulgence. Thus no case for interference in the matter - jurisdiction dismissed.
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