Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
April 9, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Provision for warranty - an assessee had a present obligation as a result of past events resulting in an outflow of resources and a reliable estimate could be made of the amount of obligation. - deduction allowed - AT
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The assessee can claim the debts in the regular assessment when these debts are being written off. But in the block assessment the assessee is not entitled to claim the deduction. - AT
Service Tax
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Credit of service tax for the period prior to the date of registration allowed - AT
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Penalty - Waiver u/s 80 - GTA Service - whatever the service tax is paid by the appellant is available as credit. - Penalty waived. - AT
Central Excise
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It cannot be said that a new product has been manufactured as by cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe the product remains the same except that its shape is changed - AT
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Dross arising during the process of galvanization - Zinc Dross cleared by the appellant is not excisable product and hence not liable to duty - AT
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Demanding duty from the firm and penalties were imposed on the firm & partner both - The appeal filed by the firm cannot be considered as joint appeal - AT
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While formulating export promotion scheme, the intention of the Government cannot to be deny the benefit of scheme, but at the same time intention cannot be to allow double benefit. - CGOVT
Case Laws:
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Income Tax
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2013 (4) TMI 179
Penalty u/s.271(1)(b) - search and seizure action u/s.132 - non-compliance by filing the details on 20.10.2009 - Held that:- So far as the assessment orders in all respect of these assessees are concerned, there is not a single whisper by the A.O. that there was default on the part of the assessees to make compliance of any notices issued u/s.142(1) or 143(2) other than notice dt 14.10.09. In fact, on the perusal of the assessment order, it is found that the assessee's Chartered Accountant who was authorised to represent the assessee attended the assessment proceedings from time to time and filed the details called for by the A.O. The A.O. has also discussed the explanation filed by the assessee's in respect of certain transactions and has finally passed the assessment orders u/s.143(3) r.w.s. 153A. Thus it is interesting to note that in some of the assessment years the returns of income filed by these assessees have been accepted. In fact, on the careful perusal of the assessment order it is seen that nowhere any grievance is raised by the A.O. that the assessees or their Chartered Accountant were 'non-cooperative' or made any conscious defiance of noting dt. 14.10.09. Thus in fact, it is seen that the assessee's responded on all the dates as required by the A.O. Merely because on 20.10.2009 the Chartered Accountant of these assessees has not appeared or filed some details as asked by the A.O., the extreme step is taken to penalise these assessees by levying the penalty u/s.271(1)(b). As in Hindustan Steel Ltd. vs State of Orissa [1969 (8) TMI 31 - SUPREME COURT] wherein held that penalty will not ordinarily be imposed unless the party obliged, either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. In the present cases, nowhere it is alleged that the conduct of the assessees or their Chartered Accountant in the proceedings was deliberate defiance of law on their part, thus no justification on the part of the A.O. to levy penalty on all these assessees for the non-compliance by filing the details on 20.10.2009 - in favour of assessee.
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2013 (4) TMI 178
Gain arising from the sale of shares - long term capital gains (LTCG) v/s short term capital gain (LTCG) - whether for the purpose of computing LTCG, the date of acquisition of shares (assets) is to be taken or the date of conversion of shares (assets) from SIT to investment for computing the period of twelve months? - Held that:- This issue was first impugned in the case of Keshavji Karsondas vs. CIT reported in (1993 (9) TMI 83 - BOMBAY HIGH COURT) wherein held that cost of acquisition, is to be taken, i.e. the date of acquisition also followed by in the case of Kalyani Exports & Investments vs. DCIT (2001 (1) TMI 240 - ITAT PUNE). The ratio has now been followed in the case of Jannhvi Investments Pvt. Ltd. (2008 (1) TMI 314 - BOMBAY HIGH COURT) and very recently in Bright Star (2008 (7) TMI 442 - ITAT BOMBAY-H) wherein held that section 45(2) talks about conversion of investment to SIT but does not involve the reverse situation, i.e. where SIT is converted into investment. The coordinate Bench at Mumbai then held that date of conversion cannot be taken to compute LTCG. Since the case of the assessee is identical on facts, respectfully, therefore, following the above decisions no reason to deviate from the decision taken by the CIT(A) that only the date of first holding, i.e. date of acquisition of the shares as SIT, and not the subsequent period of holding as capital asset is accepted - in favour of assessee.
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2013 (4) TMI 177
Bad debts written off disallowed - Appellant-company is engaged in the business of broking services in commodities and investment - Held that:- AO has not made any enquiry as what happened in the subsequent years about the debtors. It appears that the AO of the debtors were also not contacted in this regard. Thus when debts were held to be bad in the same year, further enquiries were to be carried out by AO to reach at a logical conclusion about allowability/dis-allowability of that particular debt. Relying on the case laws of TRF Ltd. (2010 (2) TMI 211 - SUPREME COURT) was not proper on the part of the AO though FAA has held that provisions of Section 36(2) were not fulfilled, but he has not elaborated as how there was violation of the said provisions. The requirements of written-off the bad debts as decided in the case of TRF Ltd. (supra) & Shreyas S. Morakhiya [2012 (3) TMI 103 - BOMBAY HIGH COURT] clearly expect the AO to take a view based on facts of the particular case. As in the present case the assessee is a broker of commodity exchange and assessment year under consideration was the period when commodity market was in its infancy stage. AO has admitted that income earned by the assessee from these two brokers amounting to Rs. 1.4 Lakhs had been offered for taxation by the assessee-company. After accepting the income of the assessee from the said transaction, he should have accepted the irrecoverability of the loans also. Respectfully following the above decision the appeal decided in favour of assessee.
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2013 (4) TMI 176
Provision for warranty disallowed - Held that:- The facts are not in dispute that the assessee has made provision for warranty expenditure in the year of sale on the basis of past experience using scientific method. It was disallowed by the A.O. on the ground that the said provision for warranty is a contingent liability. Tribunal in assessee's own case for A.Y. 2005-06 while relying on the decision of Rotork Controls India (P) Ltd. vs. CIT (2009 (5) TMI 16 - SUPREME COURT OF INDIA) decided the similar issue in favour of the assessee stating that warranty was an integral part of sale price as the warranty stood attached to the sale price of the product. It was also observed that warranty provisions have to be recognized because an assessee had a present obligation as a result of past events resulting in an outflow of resources and a reliable estimate could be made of the amount of obligation. Therefore the assessee had incurred the liability which was an allowable deduction under section 37 - assessee's appeal stands allowed.
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2013 (4) TMI 175
Clim of Bad debts in Block Assessment proceedings - search and seizure operation was conducted at the business places of the assessee as well as his four sons - assessee filed block return showing an income of Rs.15,00,000/- in response to notice u/s 158BC(a) - CIT directed to AO to allow a further the claim of bad debt of Rs.2,83,760 + Rs.14,84,677 in addition to claim of bad debt already allowed by him in the assessment order and reduce the undisclosed income of Block assessment year accordingly - Held that:- The undisclosed income for the block period had to be computed in respect of the previous years falling with the block period in accordance with the provision of the Income Tax Act on the basis of the evidences found as a result of such requisition of books of accounts or other documents such other material or information are available with the AO and relatable to such evidences. The income so computed is to be reduced by the aggregating of the total income or is to be increased by aggregate of the total loss of such previous year as has been mentioned u/s 158BB(1)(a) to 158BB(1)(f). No doubt there had been search in the case of the assessee where certain documents were seized in the case of the assessee which consists of list of the debts but no evidence had been found or seized which may prove that the assessee had written off these debts. The assessee can claim the debts in the regular assessment when these debts are being written off. But in the block assessment the assessee is not entitled to claim the deduction. There is no evidence recorded which may prove that the evidence has been found or seized during the course of the search which may prove that the debts claimed by the assessee as bad debt were written off in the accounts of the assessee. Thus no other alternative else to except to confirm the order of the CIT(A). This Tribunal do not have any power for enhancement. We therefore sustain the addition on account of the bad debts only to the extent of Rs.27,88,438/- out of which debts claimed by the assessee before the AO to the extent of Rs.72,07,147/- appeal of the assessee stands dismissed.
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2013 (4) TMI 174
Addition made on account of two Sundry Creditors under the head Income from Other Sources - Held that:- The advances received by the assessee from the two parties were duly adjusted in the subsequent year against the sales made by the assessee to both the parties. Since the advances received were duly adjusted and set off against the sales, which were made to these parties and there remained no advances in the subsequent year the addition made by the AO cannot be sustained - thus delete the addition made - in favour of assessee. Addition of Rs.5,00,000/- made on account of introduction to Capital under the head Income from Other Sources - Held that:- Going through the bank accounts as well as the confirmations filed by the assessee from Tea Brokers (Guwahati) Pvt. Ltd. it is seen that ultimately the amount came to the bank account of the assessee's proprietorship concern, i.e. Giriraj Steel Traders of Rs.2 lakhs on 7.3.2001 and Rs.3 lakhs on 21.3.2001 by way of transfer from G. D. Enterprises. This is apart from the fact that the assessee has received a sum of Rs.5,35,858/- from M/s. Tea Brokers (Guwahati) Pvt. Ltd. as refund of the loan earlier advanced by the assessee along with interest thereon. M/s. Tea Brokers (Guwahati) Pvt. Ltd. is an income-tax assessee, the identity of which is not doubted. The amount has been received through cheque and has duly come in the bank account of the assessee. Thus the assessee has discharged his onus, thus the addition deleted by setting aside the order of the CIT(A)- in favour of assessee. Addition of Rs.65,000/- made on account of introduction to Capital under the head Income from Other Sources - assessee reiterated the submissions that out of cash in hand accumulated from its withdrawals from the bank account of the assessee - Held that:- On going through the bank account and cash book and keeping in view of the documents of the assessee, the explanation of the assessee that out of cash in hand accumulated from its withdrawals from the bank account of the assessee accepted. No infirmity in the order of the CIT(A) in confirming the addition - against assessee. Addition of Rs.90,020/- made on account of the introduction to the capital in the proprietorship concern - Held that:- Going through the copy of the bank account it is noted that the assessee had transferred on 13.9.1999 a sum of Rs.70,000/- in the current account of the proprietorship concern and similarly, the assessee had transferred on 15.12.1999 a sum of Rs.20,000/- in his proprietorship concern vide cheques. The sum of Rs.20/- is a petty amount and is also appearing as transfer on 22.3.2001. Thus the observations made by the authorities below are not correct and the sum of Rs.90,020/- is duly appearing in the Punjab National Bank account number on three dates amounting to Rs.70,000/-, Rs.20,000/- and Rs.20/-. As the assessee has duly explained the source of the capital introduced in the firm orders to delete the addition - in favour of assessee.
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2013 (4) TMI 173
Addition of 0.5% commission to the total income - whether a share premium account which resulted in capital reserve is related to share capital and so should not be added back? - Assessee submitted that the assessee being a legal entity was to hold shares when the capital reserve against investments already rendered to tax in the earlier years - Held that:- The taxation of the amount over and above the amount returned by the assessee as income in pursuance to notice u/s.158BB was not to be adjudicated in the manner that the AO is trying to which process a regular return by analyzing it on the incorporated undisclosed income which the assessee has disclosed was not part of the search material. Thus the enhancement on account of commission rate against stipulated would be business norms part of commission on behalf of some body else will not incur any loss to the Revenue insofar as the assessee being in the nature of holding investment on behalf of some other persons cannot claim to earn more and pay more as was the opinion expressed by the AO and CIT(A). This addition therefore has no legs to stand on insofar as the assessee had rendered income on the basis of receipts and payments made which cannot be enhanced unilaterally. The same is directed to be deleted. Depreciation disallowed as a percentage of the total claim insofar as the assets were brought forward from earlier years for charge to the P L account by the assessee - Held that:- Depreciation is a charge to the Profit Loss account to be allowed when there is no controversy in respect to its ownership and having been put to use cannot be disallowed arbitrarily. The CIT(A) just confirmed the action of the AO without bringing on record the prime facts as narrated by the assessee before him to controvert. No hesitation to delete the disallowance of depreciation as well.
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2013 (4) TMI 172
Unexplained cash credits - unidentified sundry creditors - Held that:- Submissions of the assessee are justified to the extent that a sundry creditor was required to be explained on the basis of summons issued u/s.131 when the creditor informed that the total amount owed to Shri Ram Constructions, the assessee. However, the loan creditor had noted a sum owed to one Shri Ram Constructions Pvt. Ltd., which company does not exist was verified and submitted by the assessee. However, the assessee produced the sale vouchers and the money receipts by the loan creditor which tallied insofar as the amount owed by the assessee tallied with a difference of Rs.27 only which required reconciliation between the two parties and not on a non- existing party alone which amount owed was shown at Rs.1,53,578. Incidentally AO has brought to tax the same insofar as the information from the ITO,flowed in respect to the assessee only and not because the Private Limited Company, which never existed, is only a method of acknowledging that the different items sold by M/s.Parvati Agencies, Rayagada was to be acknowledged by the assessee on payment against purchases on account of crusher and otherwise. Thus AO erred in holding a view that the sum of Rs.1,53,551 should be added in the hands of the assessee as unexplained cash credit when AO has accepted the purchases in accordance with the credit given by the assessee to M/s.Parvati Agencies, Rayagada was recorded by M/s.Parvati Agencies, Rayagada in the name of non-existing Pvt. Ltd. Company. In favour of assessee.
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2013 (4) TMI 171
Capital reserve represents share premium amount or investments - as per assessee this share premium account which resulted in capital reserve is related to share capital and so should not be added back - search and seizure operation was conducted - disallowing the commission payable - Held that:- The assessee filed return indicating that the cash seized was on the basis of liquidation of investment which were incorporated in the balance sheet may or may not have been paper transactions but were on the basis of receipt of cash which was duly acknowledged and incorporated in the books of account. AO having accepted the return in accordance with the provisions of the I.T.Act, was not to verify further the treatment given to the income so rendered which is part and parcel of the accounting as per the Companies Act duly audited under the provisions of the I. T. Act as well. Therefore the capital reserve which the AO believed was liquidated but required explanation was on the basis of share holders investing in the Company along with the premium which premium was income in the hands of the assessee as capital were liquidated and rendered to tax u/s.132(4). Thus the earning of commission to be passed on to the real creditor was not to be disturbed as expenditure remaining unexplained. Deletion of Rs.30,85,000 as commission claimed as expenditure which was to be on the basis of income earned to the like amount directed. Similarly the enhancement of Rs.6,17,000 does not have any basis as computed by the AO as they are contrary to his own finding for the purpose of taxation expenditure from undisclosed income. Loans and advances standing were against the reserve created by the assessee was on the basis of income rendered to tax and therefore could not be taxed in the hands of the assessee insofar as the AO accepted that the major loans and advances was to Sudha Devi Foundation. When the balance was rendered to tax it was nobody's case that the assets were to be verified which assets were not created and were part and parcel of the physical cash found at the time of search. Thus having rendered income, AO ought to have considered that the assets and liabilities cannot be taxed over and above the returned income have to be under specific provisions - direction to AO to accept the return as filed by the assessee.
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2013 (4) TMI 154
Penalty u/s.271(1)(c) - Penalty regarding claiming excess depreciation - Held that:- The Tribunal recorded excess depreciation originally claimed was on account of bonafide and inadvertent mistake on the part of the assessee. During the course of the assessment proceedings, the assessee realised its mistake and pointed out the same mistake should not be visited with penalty - If the time to file a revised return had expired. In any event, it is not disputed that it was a bonafide mistake on the part of the assessee. Penalty regarding wrongly claiming loss on sale of garment unit as a revenue deduction - Held that:- Tribunal records a finding that in the profit and loss account filed along with the return of income, the assessee has clearly described the loss . This loss was added to the net loss in the computation of the total income. Thus, there was complete disclosure - The Tribunal also records that the loss was claimed as a revenue expenditure as the Chartered Accountant did not advice them correctly as to the legal position - The mistake was noticed and corrected by the assessee. The Tribunal concluded the claim for deduction made by the assessee was on account of a bonafide mistake and in such circumstances, the levying of penalty was not justified. Since the decision of the Tribunal is based on finding of fact, we see no reason to entertain above questions - Appeal is dismissed in favour of Assessee.
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Customs
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2013 (4) TMI 164
Misdeclaration of goods at the time of import – goods seized – provisional release of goods was order on fulfillment of certain conditions – Held that - The terms of the order safeguards both differential duty and fine and penalty to the extent of 25% of the differential duty amount. Therefore tribunal are prima facie of the view that the order passed is fair to both Revenue and the appellant and the modification by another passed order is not warranted.
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2013 (4) TMI 163
Classification of imported goods - Appeal is filed against the order passed by the CESTAT where tribunal set aside the confiscation, redemption fine and penalties imposed on the goods imported by the assessee even though the same were mis - declared and misclassified by the assessee – Held that - There is no allegation that the assessee has colluded with the foreign supplier either in relation to the description of the goods or in relation to the valuation of the goods. It is relevant to note that even after the first test report, the Revenue could not arrive at a conclusion that the goods are classifiable under CTH 5801. It is only after the second test report the Revenue could arrive at a conclusion that the goods are classifiable under CTH 5801. It cannot be said that the assessee had misclassified the goods with an intention to evade payment duty. The decision of the Tribunal that there was no mala fide intention on the part of the assessee, even though the classification of the goods claimed by the assessee is not correct, it was not a case for confiscation/redemption cannot be faulted.
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Corporate Laws
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2013 (4) TMI 162
Application u/s 44 Company Law Board Regulations, 1991 - application challenging the maintainability of the above company petition – eligibility criteria is not fulfilled u/s 399 of the Act – Held that - In the present case, The petition has been filed by a single shareholder and therefore the above criteria are not fulfilled by the petitioner on the ground that to meet the requirements of the above criteria there must be not less than 100 members and not less than 1/10 of its members. I hold the same is not applicable in the present case. The next criterion to meet the requirement to maintain a petition, in the very same provision, is that any member or members holding not less than 1/10th of the issued share capital of the company provided that the applicant or applicants have paid all calls and other sums due on their shares. There is no dispute in respect of all calls having been paid by the respondent/petitioner. respondent/petitioner is holding 12,00,000 equity shares of Rs. 10/- each constituting less than 1/10 of the issued, paid-up share capital of the Company. Therefore, the petition is not maintainable.
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2013 (4) TMI 161
Anti-competitive agreements - Information has been filed under section 19(1)(a) of the Competition Act, 2002 informant alleging inter alia contravention of the provisions of sections 3 and 4 of the Act. It is alleged by the informant that the opposite party associations make it compulsory for every film distributor to become their member and/or register his/its film with them before the exhibition of such film. A distributor who refuses to become a member with them is not allowed to distribute and exhibit his/its film in the territory which is governed/regulated by the respective opposite party association. It is averred by the informant that the opposite party no. 1 directed its members not to release the film 'Mausam', in its territory unless the claim of its member of Rs.2.5 crores was settled and convened its other members to intervene in the distribution of the film until recovery of dues. It is, thus, alleged that the opposite party associations acted malafidely and arbitrarily in boycotting the film with an effort to secure a claim of their member. Held that - On a plain reading of the aforesaid circulars/letters, it is evident that the opposite party associations through these circulars/letters tried to limit/control the supply of the film in contravention of the provision of section 3 (1) read with section 3(3)(b) of the Act. By virtue of the provisions contained in section 3(3) of the Act, any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) directly or indirectly results in bid rigging or collusive bidding, is presumed to have an appreciable adverse effect on competition. The Commission directs the Opposite Parties to cease and desist from the practices of pressurizing the distributors to settle the monetary disputes with its members and also imposed penalty to ensure effective functioning of the market.
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Service Tax
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2013 (4) TMI 167
Appeal against refund claim of credit availed prior to the registration– Held that - Considering the fact that the decision relied in the case of Portal (India) Wireless Solutions Pvt. Ltd [2010 (7) TMI 92 CESTAT, BANGALORE] has already been set aside by the Hon'ble Karnataka High Court in [(9) TMI 450 - KARNATAKA HIGH COURT] and therefore, the issue in the matter is no longer res integra. - Decided against the revenue.
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2013 (4) TMI 166
Cenvat Credit - Input services - appellant availed the service of the share transfer and paid service tax thereof. - Held that - Following the judgment of the Hon'ble High Court of Mumbai in the case of Ultratech Cements Ltd [2010 (10) TMI 13] the issue is no longer res integra. - Credit allowed - Decided in favor of allowed
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2013 (4) TMI 165
Penalty - Waiver u/s 80 - GTA Service - It is the contention of the appellants that they were under the bona fide belief that as the Notification No.32/2004-ST they are entitled for exemption and therefore they are not liable to pay service tax. - Further the service tax is paid by them is available as credit. Held that - In the case in hand whatever the service tax is paid by the appellant is available as credit. Therefore, in that scenario Section 80 of the Finance Act 1994 is applicable to the facts of the case. Therefore, by giving the benefit Section 80 of the Finance Act 1994 tribunal hold that penalty is not imposable on the appellant. - Penalty waived - Decided in favor of assessee.
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Central Excise
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2013 (4) TMI 160
Waiver of pre-deposits - Cenvat Credit - Rule 6 - maintenance of separate accounts - simultaneous claim for benefit of notification No. 30/2004-C.E & No. 29/2004-C.E. - held that:- prima facie case is in favor of assessee - stay granted.
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2013 (4) TMI 159
Waiver of pre-deposit of duty, Interest & Penalty - Classification - manufacture - cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe - Held that:- it cannot be said that the appellant has manufactured a new product as by cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe the product remains the same except that its shape is changed. - In view of the stay order passed by the Tribunal in the case of Srihari Greenhouse Pvt Ltd (2011 (12) TMI 353 - CESTAT, Mumbai), pre-deposit of dues are waived for hearing of the appeal. As the Commissioner (Appeals) has not decided the issue on merits and dismissed the appeal for non compliance with the condition of pre-deposit, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits without insisting pre-deposit and after affording a reasonable opportunity to the appellant - Appeal is allowed by way of remand
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2013 (4) TMI 158
Excise Duty - Manufacture - Clearance of Dross arising during the galvanization - by-product or not - Held that:- We find that excisability of Zinc Dross was examined by this Tribunal in the case of Vishal Pipes (2010 (4) TMI 314 - CESTAT, NEW DELHI ) for the period after both the amendments of 2005 and 2008 as period of demand in that case was March, 2005 to October, 2008 - We also find that Tribunal in the case of Vishal Pipes relying upon the decision of the Hon’ble Supreme Court in the case of Indian Aluminum Co. Ltd. (2006 (9) TMI 6 - SUPREME COURT OF INDIA ) and TISCO (2004 (2) TMI 68 - SUPREME COURT OF INDIA) has taken a view that Zinc Dross is not excisable goods. We, therefore, following the decision of coordinate Bench hold that Zinc Dross cleared by the appellant is not excisable product and hence not liable to duty - The Order-in-Original and Order-in-Appeal are set aside - the appeals are allowed in favour of Assessee.
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2013 (4) TMI 157
Demanding duty from the firm and penalties were imposed on the firm & partner both - Appellant signed the appeal memo filed by the firm & no separate appeal - Held that:- In the present case the facts are different aswe find that before the Commissioner (Appeals) there was no joint appeal filed by the firm as well as partner. As per the provisions of Section 35 of the Central excise Act – any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order. From reading of the above provisions, it is clear that any person aggrieved by the order passed by the adjudicating authority has to file appeal - In the present case, no appeal has been filed by the present appellant before the Commissioner (Appeals) - The appeal filed by the firm cannot be considered as joint appeal, as the appeal is filed only by the firm and name of the appellant had not mentioned in the appeal memo as appellant - In these circumstances, we find that the present appeal is not maintainable. Appeal is dismissed in favour of Revenue.
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2013 (4) TMI 156
Admissibility of rebate claim in the light of the amendments in the Notification No. 43/2002-Customs - applicant has exported goods against the fulfilment of export obligation under Advance Authorization Scheme in terms of Notification No. 93/2004-Cus., dated 10-9-2004. The rebate claims were rejected for violation of condition (v) of the said Notification. - Held That: - applicant has already availed one benefit by counting said exports towards his export obligations. So the authorities are justified in disallowing the benefit of input stage rebate in terms of condition No. (v) of said Notification. While formulating such type of export promotion scheme, the intention of the Government cannot to be deny the benefit of scheme, but at the same time intention cannot be to allow double benefit. Government of India in catena of judgments has held that exporter will be eligible for rebate of duty paid on finished goods, as condition (v) of Notification No puts restriction on input stage rebate only - Government notes that in the case of M/s. Shubhada Polymers Products Pvt. Ltd. (2009 (1) TMI 167 - GOVERNMENT OF INDIA) the said issue was decided by Government vide its Order No. 4-6/2009, dated 16-1-2009 holding that rebate of duty paid on materials used in the manufacture of goods exported in discharge of export obligation under DEEC scheme was not admissible in term of condition No. (v) of Notification No. 43/2002-Cus., dated 19-4-2002 as amended vide corrigendum dated 29-11-2002. The said notification was replaced by Notification No. 93/2004-Cus., dated 10-9-2004 and condition (v) of said notification was also amended. As per amendment dated 29-11-2002 in Notification No. 43/2002-Cus. the exporter cannot claim rebate under Rule 18 of the duty paid on materials used in the manufacture of resultant products. But in the instant case, applicant is claiming rebate on the duty paid as the finished goods which is not contrary to the amended condition (v) of the Notification No. 43/2002-Cus. Hence applicant is entitled for the rebate of duty.” - Government notes that the amended condition (v) in both the Customs Notification’s i.e. 43/2002-Cus. and 93/2004-Cus. is exactly same - Government finds no infirmity in orders of appellate authority and hence, upholds the same - Revision Applications are rejected being devoid of any merit.
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2013 (4) TMI 155
Condonation of delay - 192 days - matter is related to the refund claim of Cenvat credit which was passed in the favour of assessee by the Commissioner (Appeals) - Revenue prefer the appeal against the said order to various authorities, there was a delay on behalf of the revenue due to various grounds and then the registry raised objection that only one appeal was filed in a matter involving four orders in original the same was returned to them and thereafter it was rectified. - Held that - the entire matter has been handled too carelessly causing delay at each stage. - No merit in the application of the Revenue because the Revenue is bound to act more diligently in such matters - Decided against the revenue.
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CST, VAT & Sales Tax
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2013 (4) TMI 170
Penalty imposing 6 per cent ad valorem on the imported Dharamkanta not shown as a part of plant and machinery in the registration of the assessee - Held that:- Tribunal has concluded that 16 years after importation was made, such penalty proceeding ought not to have been initiated. Penalty can only be imposed, when there is a finding to the effect that the importation itself was invalid and the same could only be done by opening the original assessment and converting the liability to pay 4 per cent ad valorem tax to 10 per cent ad valorem tax. That having not been done, the penalty proceeding, in the instant case, could not be initiated.
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2013 (4) TMI 169
Input tax credit claimed - Petitioner is a dealer under the KVAT Act commenced their business with effect from 8-5-2006 and applied for registration on 28-12-2006 granting input tax credit only for the period subsequent to 28-12-2006 - Held that:- Dealers who had voluntarily applied for registration under the Act for the period from 15-12-2007 to 31-3-2008 would be entitled to claim input tax credit on their purchasers covered under bills/invoices of registered dealers within the State, from the date of commencement of their business. It is evident that this section applies only to dealers who were not registered under the Act and had voluntarily applied for registration during the period specified in the Section. Thus in so far as the petitioner is concerned, they got themselves registration with effect from 28-12-2006. Therefore, when Section 15 B was introduced by the Kerala Finance Act, 2008 with effect from 1-4-2008, petitioner was registered dealer and hence is not one similarly situated to dealers who are eligible for the benefit of the section. Consequently, the petitioner cannot plead that they are similarly situated dealers and cannot complaint of discrimination or violation of Article 14 of the Constitution. Thus case of discrimination canvassed by the petitioner has to be rejected.
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2013 (4) TMI 168
Cancellation of the registration - assessee contested that though show cause notice was issued on 19/10/12, despatched only on 2/11/12 and served on 7/11/12, it was cancelled on the date of issuance of the notice itself - writ petition is fled - Held that:- SCN was served on the petitioner on 8/11/12. Petitioner did not respond to the notice and therefore registration was cancelled by order dated 28/11/12. It is stated that the date 19/10/12 shown in Ext.P2 is a mistake. Thus, the basis on which the writ petition is filed, that the registration was cancelled on 19/10/12 is factually erroneous. On submission of Government Pleader that it was only by order dated 28/11/12 the registration was cancelled and on that basis writ petition closed.
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