Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
May 15, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Refund claim adjustment against tax dues - right to seek such refund had not been crystallized. - there was no question of accepting the petitioner’s offer for adjusting the refund payable against the tax due - HC
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It was not legally permissible for the revenue to recover from the Directors, interest and penalty arising out of the assessment order passed against the company - HC
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Reopening of assessment - It seems that the Tribunal has looked at only the evidence adduced by the assessee and has not adverted to the attempts made by the assessing officer - matter remanded back - HC
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Benefit of immunity from penalty u/s 271(1)(c) - assessee had made a statement during the search, explained the manner in which the surrendered amount was derived, and paid tax as well as the interest on the surrendered amount. - penalty waived - HC
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Reopening of assessment – there was no failure on part of the assessee to disclose truly and fully all material facts. - notice issued u/s 148 quashed. - HC
Customs
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Withholding of duty drawback disbursal – power of department u/s 110(3) related to seizure - order is legal and within the jurisdiction of the revenue. - HC
Service Tax
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Service Tax Voluntary Compliance Encouragement Rules, 2013 [VCES] Notified
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Service Tax Liability on SIM Cards / Pre paid Cards – payment of service tax by the BSNL (i.e service recipient) - demand set aside. - AT
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The expression ‘consulting engineer’ at the relevant time (i.e. prior to 01.05.2006), did not include “a private limited company or any other body corporate” - HC
Central Excise
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Valuation dispute – Related person - Mutual Interest in the business of each other - Interconnected undertaking - considering various aspects, decided in favor of assessee - AT
Case Laws:
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Income Tax
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2013 (5) TMI 335
Refund claim adjustment against tax dues - Held that:- Had the petitioner’s claim for refund crystallized into an indefeasible right, such contention was perhaps possible to be accepted. In the present case, neither the computation of the refund payable to the petitioner under the return filed for the AY 2008-09 nor its right to seek such refund had been crystallized. The return for the A.Y 2008-09 was not yet processed. Till this exercise was completed, there was no question of accepting the petitioner’s offer for adjusting the refund payable against the tax due - petition dismissed.
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2013 (5) TMI 334
Undisclosed income - income on interest on fixed deposits, income under the head of capital gains and rental income - Held that:- The assessee has filed its return for the assessment year 1999-200 on 29.06.2001 disclosing the aforesaid income. That is the income for the relevant assessment year for the block period, though the assessee had incurred, it was well within the taxable limit. It is by adding 10 years income, it was made to appear as if, he is evading tax. Two fact finding authorities on proper appreciation of the material on record have exposed this mistake committed by the Assessing Authority. No merit in this appeal. The substantial question of law is answered in favour of the assessee and against the revenue.
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2013 (5) TMI 333
Re opening of assessment - assessees & his family members were alleged to be involved in fake sale of rock phosphate which is raw material needed for manufacturing SSP to obtain the subsidy from the Govt. of India @ 500 to 700 per M.T. - Held that:- A bare perusal of the reasons recorded show that the basis of re-assessment proceeding is the statement of Sri Jugual Kishore Soni who in his statement has not named the petitioner as one of the purchasers of Rock Phosphate from him but has stated to be issuing fake bills to nine firms with two out of which assessee happens to have dealings. There is no material to connect the petitioner with Sri Jugual Kishore Soni to form an opinion that the income of the petitioner has escaped assessment. It is not the case of the Department that two purchasers to whom Rock Phosphate was allegedly supplied by Sri Jugual Kishore Soni through fake bills & assessee happens to have dealings had not purchased Rock Phosphate from any other person. The reasons recorded by the authority concerned has no nexus to form an opinion that the income of the petitioner has escaped assessment. In favour of assessee.
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2013 (5) TMI 332
Reopening of assessment – u/s 148 – As per the AO amount received for prepaid services at the time of purchase of the recharge is not an advance which could be appropriated against future use of service but the income crystallized as soon as the payment was made by the customer. - Held that:- In the original assessment, the AO asked the assessee to furnish details of advance income and the corresponding expenditure incurred. The petitioner pointed out that the company follows mercantile system of accounting and such principles regularly followed by the petitioner, revenue is recognized only when the customer actually uses the network of the company and services are actually rendered to the customers. It was therefore clarified that the incomes received in respect of which services are not rendered during the year are accounted for in the balance sheet as advance income. The assessee thereafter proceeded to explain that the expenditure relateable to such incomes would be available deduction during the year itself. AO in his detailed reasoned order of assessment, gave reasons for disallowing expenditure relateable to such advance income. He concluded that the assessee in the books recognizes this expenditure as current liabilities but the corresponding services are to be offered in the next financial year. He therefore held that, "the expenditure not relateable to the earning of income naturally has to be allowed in the year in which the corresponding income is offered to tax". He thus proceeded on the basis that the income in question would be taxed in the future years and that therefore, expenditure relateable to such income cannot be a valid deduction in the current year. Thus AO having examined the nature of receipts and the corresponding expenditure in the original assessment, now cannot be permitted to change his view with respect to the nature of treatment such receipts must receive. AO made no additions on the count that the payments towards re-charges were not advance but accrued income and made disallowances of the expenditure pro-rata relatable to such income deferred by the assessee to be accounted for in the future years. Thus, impugned notice is quashed.
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2013 (5) TMI 331
Liability of directors of private company in liquidation - Section 179 v/s 156 - Penalty u/s 271(1)(c) - whether in exercise of powers u/s 179 of the Act any recovery can be made from the petitioner towards interest and penalty with respect to the private limited company in which the petitioner was a Director? Held that:- Issues are covered in the decision of the Court in case of Maganbhai Hansrajbhai Patel v. Assistant Commissioner of Income Tax [2012 (11) TMI 189 - GUJARAT HIGH COURT]. Therefore it was not legally permissible for the respondent to recover from the petitioner, interest and penalty arising out of the assessment order passed against the company, in which the petitioner was a Director. Respondent shall not seek any recovery of the penalty and shall refund the interest and a portion of the penalty, which is already recovered so far. Since the petitioner had approached this Court after a considerable delay after the interest was recovered, we provide that such refund shall not carry interest, if made within a period of three months from today. Failing which, from the end of such period, the amount to be refunded shall carry simple interest @ 9% per annum till actual payment.
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2013 (5) TMI 330
Reopening of assessment – petitioner contested that AO had not applied his mind independently but acted on the objection of audit party and reopened the case thus based on change of opinion - Held that:- Reasons for reopening if are noted, are almost identically worded as that of audit report. No material worth the name emerges to indicate any independent application of mind. Facts are quite glaring on the contrary & they clearly establish absence of subjective satisfaction of AO. Thus, the ground raised by the petitioner that such notice of reopening is invalid for the Assessing Officer having not formed his independent belief requires to be sustained. As regards other two grounds raised by the petitioner which are also contested heavily, petitioner sought support from the decision of GKN Driveshafts (India) Ltd. v. ITO. [2002 (11) TMI 7 - SUPREME COURT] which makes it obligatory on the part of AO to pass a reasoned order on receipt of objections from assessee before finalizing assessment and from CIT v. Kelvinator of India Ltd.[2010 (1) TMI 11 - SUPREME COURT OF INDIA] which does not permit change of opinion of AO at the time of reopening of assessment. These aspects need not be gone into when the challenge of petitioner on the main ground itself has succeeded effectively. Thus the impugned notice of re-opening needs to be quashed. In favour of assessee.
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2013 (5) TMI 329
Reopening of assessment - Whether Hon’ble ITAT was correct in deleting the addition of Share Application Money u/s 68 of Act, when the AO had comprehensively proved that the applicants had no creditworthiness and their genuineness & identity was also doubtful? In light of cash deposits in accounts of applicants, their own admittance of providing accommodation entries whether Hon‟ble ITAT was correct in holding that genuineness of the transactions was established? Whether in view of report of Investigation Wing, the onus of assessee gets discharged in normal course by merely paper documents like PAN card, ROC documents, IT returns etc.? Held that:- In the present case the Tribunal, ought to have adverted to the attempts made by the assessing officer to probe into the matter deeper by issuing notices/ summons to the subscriber-companies which evoked no response. The assessee no doubt submitted documentary evidence to show that the companies which subscribed to its shares were income tax assesses and they had also prepared profit and loss account, balance sheet, etc. but the evidentiary value of these on which the Tribunal has relied, ought to have been examined in the light of the stand taken by those companies in their assessment proceedings for the same assessment year. We have extracted a specimen letter written by the Director of Ethnic Creations Pvt. Ltd. wherein it has been admitted that the company carries on the business of providing accommodation entries for commission. Identically worded letters were written by the other companies to their respective assessing officer, which are all reproduced in the assessment order. It seems that the Tribunal has looked at only the evidence adduced by the assessee and has not adverted to the attempts made by the assessing officer in the course of the assessment proceedings to examine the evidence and discredit the same. Therefore the impugned order is set aside. The substantial questions of law are answered in favour of the revenue. The appeal is remitted to the Tribunal for being disposed of afresh.
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2013 (5) TMI 328
Benefit of immunity - u/s 271(1)(c) clause (2) of explanation-5 - The question is, is it the requirement of the law that the return should be filed before the due date, in order to get the benefit of immunity? Held that:- In order to get benefit of immunity under clause (2) of explanation-5 to section 271(1)(c) of the Act, it is not necessary to file the return before the due date provided that the assessee had made a statement during the search, explained the manner in which the surrendered amount was derived, and paid tax as well as the interest on the surrendered amount. In the present case all conditions as detailed in clause (2) to explanation-5 were satisfied. Therefore assessee was entitled to the immunity. Thus, the appeal has no merit it is dismissed.
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2013 (5) TMI 327
Reopening of assessment – Reasons for reopening firstly, that no TDS was deducted on the discount paid by the petitioner on prepaid SIM- card and recharge vouchers to various dealers which was in the nature of commission. Second ground was that no tax at source was deducted on roaming charges paid by the petitioner to other telecom service providers. As per appellant both these issues were at large before the AO in the original assessment. No disallowance was made in the assessment so framed. Reopening of the assessment therefore, was not permissible that too beyond a period of four years from the end of relevant assessment year. Revenue opposed the petition contending that after recording proper reasons, the AO had issued the notice. The petitioner had though supplied the details of those dealers who received the commission in excess of Rs. 50 lakhs, the details regarding other dealers who may have received such payments below Rs.50 lakhs was not supplied. There would be the failure on part of the petitioner to disclose true and full facts. Held that:- After going through the details of communications made by the assessee to AO we are convinced that there was no failure on part of the assessee to disclose truly and fully all material facts. Though an attempt on behalf of the Revenue was made before us to contend that by supplying the list of only those dealers who received commission in excess of Rs. 50 lakh, the petitioner failed to discharge such onus of disclosing true and full facts, we are afraid such a contention cannot be accepted for variety of reasons. Firstly, this issue is nowhere borne out from the reasons recorded. Secondly, the petitioner replied to a query of the AO and supplied such details in this regard which were called for. Thirdly, with respect to liability to deduct tax at the source, there is no distinction even suggested by the AO on the basis whether such payment was in excess of Rs. 50 lakhs or below. In the result, petition is allowed. Impugned notice dated 7.3.2012 is quashed.
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2013 (5) TMI 326
Search operation - Whether the Tribunal fell into error in directing that the sum of Rs. 39,52,293/-, added by the AO was covered by the disclosure made by the assessee after the survey conducted, which led to his filing a return? - Held that:- The question is one which entirely rests on facts and is not a substantial question of law. Secondly, even if we consider the question on merits the Tribunal has arrived at the correct decision in concluding that the said sum of Rs. 39,52,293/ which was added by the assessing officer was embedded in the additional offer of Rs.1,41,68,206 made by the assessee at the time of the survey proceedings - in favour of the respondent/assessee.
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Customs
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2013 (5) TMI 325
SARFAESI Proceedings - 3rd respondent had imported certain machineries and according to the 1st respondent, the export obligations were not fulfilled - whether pending adjudication of the disputed issue of first charge, Bank should be permitted to proceed with the sale of the mortgaged assets as directed by the DRT :- If the Bank is permitted to proceed with the sale with a direction to keep the required amount out of the sale proceeds, in an interest bearing account, pending adjudication will not prejudice the interest of respondents 1 and 2. Petitioner/Bank will be at liberty to proceed with the sale of the secured assets of the 3rd respondent, Respondents 1 and 2 will intimate to the Bank the amount due to it from the 3rd respondent within three weeks from today & petitioner/Bank shall keep the amount stated to be due to respondents 1 and 2 in an interest bearing account, which shall be pending adjudication of the question of first charge by the DRT Once the sale materializes and the amount is kept in deposit as ordered above, respondents 1 and 2 shall debond the premises so that, the petitioner/Bank can hand over possession thereof to the successful purchaser.
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2013 (5) TMI 324
Withholding of duty drawback disbursal – Admissibility of power of department u/s 110(3) related to seizure - Petition is related to (i) not releasing the payment to the petitioner and (ii) to transfer the amount to the revenue. As per revenue they have a power of seizure of documents and things in terms of the provisions of Section 110(3) of the Act, therefore, the action of the revenue in directing the Bank to transfer the amount to the revenue is in exercise of the jurisdiction conferred under the aforesaid provisions. It is pointed out that in respect of seizure of goods, the revenue has to issue SCN in time bound manner but in respect of seizure of documents or things there is no time limit for the issuance of the SCN. Held that:- Following the of Rohit Kumar vs. Union of India, [2001 (12) TMI 79 - HIGH COURT AT CALCUTTA] & Commissioner of Customs, New Delhi vs. Euroasia Global, [2009 (3) TMI 199 - SUPREME COURT OF INDIA] first part of the communication for withholding the amount of drawback released in favour of the petitioner is legal and within the jurisdiction of the revenue. However second part of the order of remitting the amount to the revenue is not contemplated under Section 110(3) of the Act. Therefore, we do not find that the petitioner is entitled to release of the amount of duty drawback. The said amount shall remain attached till the final decision of the adjudication proceedings.
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Corporate Laws
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2013 (5) TMI 323
Decree for permanent injunction - allegation of infringement of trade mark registered in the name of the Plaintiffs containing the mark SATYA - Held that:- Plaintiffs have proved the facts stated in the plaint and have 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. Feature of the defendant’s mark that means “SATYA” is identical to the plaintiff’s trade mark and the services offered by the defendant are identical to the plaintiffs, a presumption of infringement arises in accordance with Section 29(2)(c) read with Sections 29(3) and 29(5) of the Trade marks Act, 1999. This Court is also of the opinion that the triple identity test is satisfied in the present case inasmuch as the competing trade marks, products and class of purchasers are the same. Thus the plaintiff has made out a case for grant of decree as prayed in the plaint in his favour and against the defendant in terms of para 33(i), (ii), (iii) & (v) of the plaint with costs and damages to the tune of Rs.5.00 lakhs.
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Service Tax
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2013 (5) TMI 338
Waiver of Pre-deposits - Condonation of a delay - Held that :- Application was filed under an inapplicable provision of law (Section 5 of the Limitation Act, 1963). This apart, the above delay has been explained in the accompanying affidavit with reference to ill health. The application cannot be allowed without prescribing conditions. Thus, appellant should pre-deposit the amount within six weeks and report compliance to the Commissioner (Appeals) whereupon the appellate authority shall take up her appeal against the order-in-original for disposal on merits. The stay and COD applications also stand disposed of.
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2013 (5) TMI 337
Penalty – u/s 76, 77 & 78 - Appellant submission that during the period in question, there was confusion as to the liability discharged of Service Tax on the commission received from the Direct Selling Agents as directed by the banks - held that - There is no reason to deviate from view taken by Bench in appellant’s own case, as the issue involved in this case and in that case was the same. Impugned order to the extent it upholds the imposition of penalties u/s 76, 77 & 78 is set aside and appeal is allowed
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2013 (5) TMI 336
Definition of ‘Consulting Engineer’ as per Section 65(31) of the Finance Act, 1994 - whether includes a ‘company’ or not as applicable to the period 1997-2001 - Held that:- The words “an engineering firm” appearing in the above definition, were substituted by the Finance Act, 2006 with effect from 01.05.2006 with the words “any body corporate or any other firm”. It is, therefore, clear that the expression “any body corporate” was introduced with effect from 01.05.2006. But, in the present case, the relevant period is 1997- 2001. At that point of time, the expression “any body corporate” was not included in the said definition of ‘consulting engineer’. The Karnataka High Court [2010 (4) TMI 344 - KARNATAKA HIGH COURT] has also taken the view that the expression ‘consulting engineer’ as it appeared in Section 65(31) of the Finance Act, 1994, at the relevant time (i.e. prior to 01.05.2006), did not include “a private limited company or any other body corporate” - no substantial question of law arises for consideration.
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Central Excise
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2013 (5) TMI 322
Valuation dispute – Related person - Mutual Interest in the business of each other - Interconnected undertaking - Determination of assessable value of the excisable goods manufactured and sold by the appellants to their sole buyer, M/s BIL, during the period from Jan 2000 to Dec.2007. - Held that:- The true meaning and scope "Mutual Interest in the business of each other" has been explained by the Hon’ble Supreme Court in Atic Industries case(1984 (6) TMI 51 - SUPREME COURT OF INDIA), under the old Section 4, which has been followed subsequently in almost every cases and has been adopted as the litmus test, to ascertain in a given circumstances, whether the buyer is a related person of the manufacturer-seller of the excisable goods. On an apparent analysis of the sale agreement, and after going through the provisions of section 4 of the Act, it is clear that the appellant have agreed to the sale the goods and the buyer M/s BIL agreed to purchase the same to specification of quality, quantity and packing as required by the buyer. The manufactured goods were to be subjected to inspection and approval by the buyer prior to the delivery - It is also specifically stipulated that the transaction under the said agreement were not based on and do not create any relationship between the parties otherwise than as the one between two independent principals and mutually exclusive in their interests and trading activities and having absolutely no dependence on each other in respect of whatsoever either as agent or related person etc. As far as loan is concerned the same was taken as a short term accommodation Loan and interest @8% p.a was paid to M/s BIL, against the lower rate interest around 4% to 5% p.a charged by SIDBI as the said Loan was converted into Foreign Currency Term Loans. Hence, such short term loan had no influence on the commercial relation between the Appellant and M/s BIL. Packing & wrapping machines from M/s BIL - held that:- supply of packing machines, on bailment, the cost of which is around 10 lakhs and approximately 5% of the total investment in plant & machinery of the Appellant, and used only for the purpose of packing of finished goods, cannot lead to an inference that the appellant had manufactured the cakes only out of the machinery supplied by their sole buyer, M/s BIL or there is a substantial investment in plant & machinery by the buyer. The ld. Commissioner has observed in the impugned order that supply of such machine, was an additional consideration, from the buyer to the Appellant. In such circumstances, the amortized cost of such machines, at best could be loaded to the assessable value of the finished goods, if not included in the cost of the finished goods, but supply of such machines on bailment, cannot make the buyer, M/s BIL, a related person of the appellant. Unit is independent or not - additional consideration - held that:- the total amount involved against all these letters/debit notes, as claimed by the Appellant and not disputed by the Revenue, was a meager amount of ₹ 4.98 lakhs in comparison to the total turnover of the appellants i.e. ₹ 4.00 to 5.00 Crores, and thus it would be incorrect to conclude that on reimbursement of such expenditure M/s BIL had exercised control over the day to management of the Appellant and that too for the entire disputed period and accordingly satisfy the definition of related person. Sharing of accrual of sales tax benefit - held that:- even though allegation of sharing of the sales tax benefits were made on the basis of the letter of the Appellant dt.29.11.2000, no evidence had been referred to in the impugned Order in support of the same, hence, the said charge is unacceptable. What is of importance is certain interdependence and reciprocity beyond the relationship of either a distributor or manufacturer so as to consider as to whether the parties are related persons. On the facts it is noticed, essentially the relationship between M/s. Kwality Ice Cream and BBLIL/HLL is one sided and the facts do not suggest that each one of them have interest direct or indirect, in the business of each other. In view of above, we are of the opinion that the Appellant and M/s BIL are not related person and accordingly, the normal sale price or the transaction value, as the case may be, (as applicable during the period January 2000 to Dec.2007,) at which the manufactured goods had been sold by Appellant to M/s BIL, be the basis for determination of value under the old/amended Section 4(1)(a) of CEA,1944. Since, on merit the issue is decided in favour of the Appellant.
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2013 (5) TMI 321
Levy of cess - Benefit of Notification No. 56/2002 dated 14.11.2002 - Held that:- In terms of the notification in question, there was no prohibition for levy and collection of education cess or higher education cess in respect of the levy and payment of excise duty and additional excise duty pertaining to the goods which are entitled for the exemption benefit under the said notification.There is no question of refund of education cess or higher education cess paid in the matter in hand by those who have availed the benefit under exemption Notification. Thus, the order passed by the Commissioner (Appeals) could not be sustained and is liable to be set aside and order passed by the original authority to be restored with all consequential results.
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2013 (5) TMI 320
Whether dextrose present in Aneroid IV was pharmaceutical necessity and whether that was active and not interfering with the process to manufacture of final goods? - Exemption Notification No.116/69 dated 3.5.1969. - Held that:- the ld. Commissioner (Appeals) had not gone through the apex court’s judgment cited by ld. DR in T.N.Dadha he case of Pharmaceuticals vs. CCE, Madras-[2003 (2) TMI 64]. - There is no material evidence on record to notice that dextrose present in Aneroid IV was of pharmaceutical necessity and a therapeutic inert without interfering with the therapeutic or prophylactic activity. In view of aforesaid observations and no evidence brought to record by the respondent - Decided in favor of revenue.
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2013 (5) TMI 319
Availment of cenvat credit - Scrapped capital goods – During the visit the officers found that the amount in respect of clearances of scrapped capital goods on 4.2.2008 & 5.2.2008 had not been paid. Accordingly duty demand/penalty arise as the appellant have intention to evade the duty. Appellant contested the imposition of penalty Held that:- The appellant do not dispute that the scrapped capital goods cleared on 4.5.2008 were cenvat credit availed and an amount equal to the duty on the transaction value was payable in terms of Rule 3(5A) of the Cenvat Credit Rules and also the amount payable in terms of Rule 3(5A) was liable to be paid along with the duty payable on the finished goods by 5th of the next month. Therefore, the amount payable under Rule 3(5A) in respect of the consignment of the scrap cleared on 4.2.2008 & 5.2.2008 was liable to be paid by 5th March, 2008 and as such, just because this amount was not paid immediately on clearance, it would not be correct to say that the appellant had intention to evade the payment. In view of this, imposition of penalty under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11 AC of the Cenvat Credit Rules is not sustainable. The appeal is allowed.
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2013 (5) TMI 318
Denial of interest on delayed refund - As per appellant refund is admissible from the date of filing and not from the date of rectification of defective application - Held that: - The date when defective application is rectified and a proper application comes to record, that date is relevant date for arise of refund with, interest in case refund is delayed. Therefore Revenue is correct. Appeal of the assessee is dismissed.
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CST, VAT & Sales Tax
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2013 (5) TMI 341
Exemption notification for the benefit of new industrial units and the product manufactured by the appellant are exempted from payment of sales tax in terms of the notification. - The authorities have decided against the appellant only in view of the fact that the appellant had manufactured exempted goods and had utilized Form 19, which could be availed only for purchase of raw material for manufacture of taxable textile goods. Held that:- the object of the exemption notification is to forego the purchase tax to give certain benefits to the manufacturer so that the new industry may survive. Since the product manufactured by appellant are chargeable to purchase tax, there is no violation of Form 19 of the Act or the Gujarat Sales Tax Rules, 1970. The appellant was exempted from payment of purchase tax for a period of six years. The assessment year 1995-96 and 1996-97 fall within the exempted period, therefore, the appellant is not liable to pay any purchase tax. The appeal is allowed. The orders passed by the Tribunal, Commissioner of Sales Tax and the Assessing Officer are set aside.
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2013 (5) TMI 340
KVAT Act - notice of demand - adjournment of the hearing seeked by assessee but no response received on the other hand order passed assessing the tax due - Held that:- Considering the fact that the Chairman of the Company expired on 16/9/2012 and his funeral was on 18/9/2012 and the hearing that was scheduled was on 19/9/2012. In such circumstances, even if the petitioner has not appeared for personal hearing, such a failure on the part of the petitioner cannot be taken as a willful one. Thus fairness requires that the matter should be reconsidered with an opportunity to the petitioner to file their objections within two weeks from today to Ext.P2 notice and also with an opportunity of hearing.
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