Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
September 27, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Revised return u/s 139(5) - Exemption u/s 10(35)/ 10(33) - AO must not take advantage of ignorance of the assessee as to his rights - The matter was remanded to the AO to consider the case on merits and decide accordingly - HC
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Disallowance on the ground of section 40A(3) of the Income Tax Act Cash payment in excess of Rs. 20,000 to Arahtiya - kachcha Arahtiya - purchases were made in the present case in commission agency business from the farmers - no disallowance - HC
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Excessive carry-forward loss If the A.O. was of the opinion that the capital loss has been determined in excess wrongly, then he should have taken action to determine the correct loss in the relevant year where such loss has been claimed and determined and he should not have reduced such loss in which only set off was claimed - HC
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Block assessment - Time limit for completion of the block assessment will have to be reckoned from 3-2-1999 on which date the search was concluded against the appellant. - HC
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Block assessment - satisfaction u/s 158BD - Mandatory requirement of satisfaction of Assessing officer is not required, when the assessing officer who initiated proceedings and the assessing officer who made the assessment, is the same person - HC
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Exemption under Section 11 - personal benefit - Office premises of the President was taken by the trust on reasonable rent - section 13(3) - By keeping the office in the same building where they are residing, the activities can be looked after without making any expenditure on conveyance - benefit of exemption allowed - HC
Customs
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Assessment of Provisional Duty - CIF value of Areca Nuts - Whether the provisional duty was to be assessed on the basis of the tariff value fixed in by the DGFT Notification dated 13th May, 2013 or on the basis of the Customs Notification dated 29th August, 2013 - HC
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Import of vehicle (BMW) under EPCG licence issued by DGFT license issued by DGFT for import of particular model of car by homologus condition under not. no. 34/04 cannot be questioned by custom authorities confiscation not justified - AT
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Exemption denied on the ground of non- fulfilment of conditions that proportion of vitamin pre-mixes or vitamins of prawn feed, by weight, shall not exceed the standard input output norms (SION) - stay granted partly - AT
Service Tax
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There was failure of pre-deposit and consequently in view of the provisions of Section 35F of the Central Excise Act, 1944, the order of Commissioner (Appeals) dismissing the appeal is impeccable and warrants no interference in the present appeal. - AT
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Condonation of delay -The process of reasoning adopted by the Commissioner for computing the period of delay from the date of despatch is perverse - appellate order quashed and remit the appeal to the Commissioner (Appeals) for denovo determination - AT
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Valuation - Stock broking services and banking and financial servicee - No receipt other than commission or brokerage made by a stock broker is intended to be brought to the ambit of assessable value of service provided by stock broker - stay granted - AT
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Mere filing of appeal against the order of the Tribunal does not result in stay of the order passed by the Tribunal. It does not empower the Commissioner to ignore the order of the Tribunal - contempt proceedings against the commission to be initiated - AT
Central Excise
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Interest on delayed amount - Refund claim - delay in granting refund of more than 9 years - The petitioner will be entitled for interest for the period 10th February, 2001 (which is three months from the date of application) to 20th August, 2010, the date on which the amount was refund - HC
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CENVAT Credit - input services - services were performed after the place of removal Assessee was entitled to avail input service credit on the services availed by them in the course of their business of manufacturing - AT
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When no factual or legal infirmity had been found in the order by the appellant and even in proceedings no case for interference with the order was made out particularly when the Appellate Tribunal had, after going through the complete record and attending circumstances, come to a firm finding that it was not a case of complete waiver - HC
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CENVAT credit - Cleared excisable goods - whether debit Against Served from India Scheme (SFIS) certificate, at nil rate of duty availing exemption under Notification 34/2006-C.E would made the goods exempted goods - held no - AT
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Job work - declaration under form 57F(4) - goods manufactured by job worker under notification no. 214/86 was cleared by the appellants at NIL rate of duty - Since duty demand has been made on re-rolled products and the appellant is not a manufacturer of the same, the demand is not sustainable - AT
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Cenvat credit on returned goods - Rule 16 - it is not the case herein that the appellant has not reversed the Cenvat credit taken - stay granted - AT
VAT
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Constitutionality of provisions - determination of entry tax - Clause (iv) of the proviso to Section 2 (h) of U.P. Tax on Entry of Goods into Local Areas Act, 2007 - Tax on market value - writ petition dismissed - HC
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Taxing sale of goods Works Contract - Whether taxing sale of goods in an agreement for sale of flat which is to be constructed by the developer/promoter is permissible under the Constitution - Held yes - SC
Case Laws:
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Income Tax
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2013 (9) TMI 879
Writ Petition, when the alternative remedy of appeal pursued by the Petitioner TDS on trade discount offered to the advertising agency Held that:- Assessing Officer did have jurisdiction and that he has not committed any such patent error of jurisdiction, which may entitle the petitioner to file the writ petition, to consider and settle the issues, which are primarily based on facts. The petitioner has already preferred an appeal against the assessing order. The advise given to the appellant not to press press certain grounds, would not give the petitioner a right to directly approach the Court, even if similar questions of law have been raised - The petitioner has filed an appeal against the impugned assessment order. It may press the appeal on all the grounds open to them - Appellant authority will decide the stay application, or hear the appeal.
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2013 (9) TMI 878
Change in method of closing stock - AO took the levy sugar and free sugar at the same price - Held that:- Quota is fixed by the Government every year and sales are made accordingly. Since there is no loss in the present year as well as in the subsequent year, there will be no impact of any change method of the book result. In view of the regular method adopted by the assessee in the past and accepted by the department, the method of valuation can not be changed during the assessment year under consideration. No reason has been given by the A.O. for changing the said method Addition made is deleted Decided against the Revenue.
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2013 (9) TMI 877
Addition on the basis of an order passed by the Sales Tax Authority which was set aside by the Sales Tax Appellate Tribunal Held that :- The addition for sale of cars etc., was held to be violative of principles of natural justice as information collected from the manufacturer of cars was not furnished to the assessee and the assessee was not allowed to cross-examine the officer who made the statement relating to sale of cars - Remitted the matter to the Assessing Officer for granting an opportunity to the assessee to cross-examine the officer who made statement relating to sale of cars and to comply with principles of natural justice.
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2013 (9) TMI 876
Revised return u/s 139(5) - Exemption u/s 10(35)/ 10(33) - Ignorance of Assessee as to his rights - assessee had filed revised computation of income claiming that dividend of Rs. 80,48,977/- from the units of mutual fund was exempt under Section 10(33) of the Act and loss on sale of units was a business loss and not speculative loss. - Sun F&C Mutual Fund was duly approved mutual fund under Section 10(23D) - Dividend from the units of mutual fund was exempt under Section 10 (35)(a). Similarly with regard to the loss, units of mutual funds were sold and not shares, and therefore, the adverse effect of Explanation to Section 73 was not applicable - Appeal not allowed on the ground that the assessee had not filed a revised return within the time allowed under Section 139(5) of the Act, but had only filed a revised computation Held that:- Reliance has been placed upon the judgment in the case of CIT Vs. Mr. P. Firm, [1964 (10) TMI 13 - SUPREME Court], wherein it has been held by Honble Supreme court that officer must not take advantage of ignorance of the assessee as to his rights - The matter was remanded to the Assessing Officer to consider the case on merits and decide accordingly. - Decided against the revenue.
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2013 (9) TMI 875
Exemption u/s 10(22) - Income of a university or other educational institution, existing solely for educational purpose and not for purpose of profit. - Whether Memorandum of Understanding as a evidence is an eye-wash - During the assessment year 1996-97, a payment of Rs. 10 lacs was made by the appellant assessee to Smt. Chandra Raj Laxmi. It was contended that such payment was made to siphon away the funds of the appellant assessee and the said state of affairs clearly indicates that the appellant assessee is not existing solely for educational purpose but also for purpose of profit. It has been the contention of the appellant assessee that the appellant assessee entered into a Memorandum of Understanding with Smt. Chandra Raj Laxmi - The Assessing Officer has not accepted the Memorandum of Understanding and has felt that the same had been created subsequently as an eyewash. Held that:- Smt. Chandra Raj Laxmi represented to be the Managing Director of M/s Bhanu & Sons Pvt. Ltd - Memorandum of Understanding stated that M/s Bhanu & Sons Pvt. Ltd. owns properties, as mentioned in the said Memorandum of Understanding - It is the contention of the appellant assessee that in connection with the said Memorandum of Understanding, the payment of Rs. 10 lacs was made - The Memorandum of Understanding suggests that the payments, to be made thereunder, are to be made to Smt. Chandra Raj Laxmi - Assessing Officer did not call upon the appellant assessee to produce Smt. Chandra Raj Laxmi before the Assessing Officer. The Assessing Officer did not take note of, how the sum of Rs.10 lacs paid by the appellant assessee to Smt. Chandra Raj Laxmi during the assessment year 1996-97 was adjusted by her in her returns. It does not appear, therefore, that the finding that the Memorandum of Understanding was an eyewash is founded on legal basis - Remit back the matter for reconsideration by the Assessing Officer.
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2013 (9) TMI 874
Disallowance on the ground of section 40A(3) of the Income Tax Act Cash payment in excess of Rs. 20,000 to Arahtiya - kachcha Arahtiya - Held that:- Assessee was maintaining all the books of account and also accounts on all statutory forms required under the U.P. Krishi Utpadan Mandi Adhiniyam, 1962. Rule 6DD (e) and (k) of the Income Tax Rules are clearly attracted in the case as the purchases were made in the present case in commission agency business from the farmers - Whenever purchases were made through commission agents 'kachcha Arahtiya' payment was made in cash to make such payments to the farmers. Rule 6DD(e) is applicable as exemption where the payment is made for the purchase of agricultural produce from purchaser. Rule 6DD (k) is attracted, where the payment is made by any person through agent, who is required to make payment in cash for goods or services on behalf of such persons - The payments, therefore, could not have been disallowed on the ground of the violation of Section 40A (3) of the Act Decided against the Revenue.
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2013 (9) TMI 873
Allowance of expenses Held that:- AO has wrongly recorded the fact that on the date of hearing dated 27.12.2010 the assessee/Authorised Representative did not appear before the A.O whereas the fact is that the assessee/Authorised Representative appeared before the A.O and the A.O himself recorded statement of some parties which are filed in the paper book. The A.O has recorded blind in correct fact which is not appreciable. Merely mentioning that the case is going to be barred by limitation on 31.12.2010 the A.O has taken shelter and on the basis of incorrect fact made the assessment under Section 144 of the Act. Such a practice is not in accordance with law, therefore, such action of the AO is not sustainable As regards claim of expenditure and addition to the extent of Rs.5,00,000/-, it has been sustained for want of verification of expenditure and others It has been rightly allowed relief of Rs.45,46,166/- as sustaining 50% of expenses and running a business with remaining 50% expenses is impossible. Addition on account of creditors Held that:- AO has accepted the document filed by the assessee containing copy of bank statement and confirmation and the AO did not doubt about the genuineness of those parties. The AO himself recorded the fact in the remand report that he has also accepted the statement of almost all the creditors recorded on 27.12.2010 except creditor for the amount of Rs.40,998/- - When the AO himself accepted the genuinness of the creditors, there is no error in the order of CIT (A) in deleting the addition of Rs.1,25,69,815/- Books of account were produced and were relied upon to allow the expenses Decided against the Revenue.
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2013 (9) TMI 872
Reduction of carry-forward long term capital loss Held that:- Action of the A.O. in reducing the determined and assessed long capital gain loss to the extent of Rs.11,54,535 cannot be held justified because there is no dispute that such loss has been determined and accepted by the department in the relevant assessment year and the appellant is entitled to carry forward and set off such loss against the capital gain if earned in the subsequent year - If the A.O. was of the opinion that the capital loss has been determined in excess wrongly, then he should have taken action to determine the correct loss in the relevant year where such loss has been claimed and determined and he should not have reduced such loss in the year under appeal where the appellant has claimed only set off the assessed and determined loss in the previous assessment years Decided against the Revenue. Addition on account of notional interest on advance given to J.K. Cement Held that:- There was funds available with the assessee at Rs.34,93,866/- and out of this, the assessee has advanced the sum to M/s. J.K. Cement. The said loan was received back on 30.06.2007. Admittedly the A.O. has not brought any evidence to suggest that the appellant has advanced the amount of the borrowed funds Decided against the Revenue. Disallowance of expenses under Section 40 (a)(ia) Held that:- As regards payment of Rs.26,94,427 toward ocean freight paid to Indian agents of non resident shipping companies is covered by circular No.723 dated 19.9.1995 and therefore provisions of section 194C cannot be made applicable - As regards payment of Railway freight of Rs.216873 to container corporation of India, it may be mentioned that the payment of railway freight is excluded from the provisions of section 194C and therefore, the disallowance made is apparently against the provisions of law - In respect of payment of Rs.202479, it consists individual payments below 20,000. Therefore provisions of section 194C is not applicable - As regards the disallowance of Rs.715346, it is seen from the details filed that T.D.S. has already made and paid as per provisions of the Act - In view of above discussions, the disallowance of Rs.3829125 made under Section 40 (a)(ia) cannot be sustained and the same is therefore deleted Decided against the Revenue.
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2013 (9) TMI 871
Block assessment - Limitation period for the block assessment under section 158BC Held that:- Panchnama dated 13.04.1999 itself reveals that nothing was seized on that date nor was anything found on that date. In fact no search was conducted and the drawing of the Panchnama on 13.04.1999 was an empty formality and was executed merely for the purpose of vacating the restraint order issued on 03.02.1999, when a restraint order under Section 132(3) of the Act was passed in respect of an Almirah in the last bed room of residence of assessee and subsequently the search party visited the residence of the asseesee on 13.04.1999 and withdrew the prohibitory order under Section 132(3) relating to the Almirah and prepared a Panchnama showing that nothing was found nor anything was seized from the said Almirah, therefore, essentially from 03.02.1999 when the last Panchnama was drawn and the restraint order passed, till 13.04.1999 when the last Panchnama was drawn whereby the restraint order was vacated, nothing else was found and in fact no further search was conducted, therefore, the last Panchnama dated 13.04.1999 was merely a release order and the same could not extend the period of limitation. Time limit for completion of the block assessment will have to be reckoned from 3-2-1999 on which date the search was concluded against the appellant. Consequently, the block assessment order was required to be passed on or before 28-2-2001 as against which the block assessment order was passed on 27-4-2001. Therefore, said block assessment order was not passed within the time limit prescribed in the Act and is time-barred Decided against the Revenue.
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2013 (9) TMI 870
Block assessment - Initiation of proceedings under section 158BD on the satisfaction of assessing officer Held that:- Mandatory requirement of satisfaction of Assessing officer is not required, when the assessing officer who initiated proceedings and the assessing officer who made the assessment, is the same person as observed in the case of CIT vs. Jamuna Prasad Kanhaiya Lal [2011 (8) TMI 848 - ALLAHABAD HIGH COURT] - In the instant case, the position is same, so, no satisfaction is needed as per the ratio laid down in the above mentioned case Decided against the Assessee.
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2013 (9) TMI 869
Exemption under Section 11 of the Income Tax Act, 1961 - fund alleged to used for personal benefit - section 13(3) - Assessee filed the return showing nil income after claiming exemption u/s 11 of the Income Tax Act, 1961. However, the assessment was completed under section 143 (3) of the Act on total income of Rs.65,56,933/- consisted of Rs.63,69,322/- as surplus and Rs.1,87,611/- disallowed as rent and electricity paid for the premises, partly occupied by the founder trustee of the trust and the Secretary of the trust Held that:- Trust is a registered trust since 1994. Its activities are not doubtful regarding charitable activities - Office premises of the President was taken by the trust on reasonable rent. Perhaps other premises might be more costly - So, the rent is allowable deduction - President and the Secretary of the trust are providing voluntarily services to the trust. They are not charging any fee/remuneration for their services. By keeping the office in the same building where they are residing, the activities can be looked after without making any expenditure on conveyance. As per the tenancy agreement, there is no provision for separate electricity meter. It is not explained whether there was an arrangement of sub meter or not - Perks are higher than salary/remuneration. In the instant case, the President and Secretary are not charging any remuneration or conveyance allowance. They are available round the clock for the activities of the trust. Separate account has been maintained for paying the genuine rent and also the electricity charges Decided against the Revenue.
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Customs
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2013 (9) TMI 859
Assessment of Provisional Duty - CIF value of Areca Nuts - Whether the provisional duty was to be assessed on the basis of the tariff value fixed in by the DGFT Notification dated 13th May, 2013 or on the basis of the Customs Notification dated 29th August, 2013 - Held that:- Since an arguable case was made out which can be decided only upon exchange of affidavits, the Court, therefore, passes an interim order directing the customs authorities to make the provisional assessment in accordance with the provisions applicable therefor and upon payment of the duty by the petitioner, shall release the goods so imported by the petitioner. Since the show cause notice was based on the purported notification dated 13th May, 2013, the concerned authorities were permitted to proceed with the proceeding initiated on the basis of the said show cause notice, but shall not take any coercive measure against the petitioner without obtaining leave of the Court - authorities shall proceed on the basis of the show cause notice, but they were restrained from taking any coercive measures against the petitioner till the disposal of the writ petition.
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2013 (9) TMI 858
Suspension of CHA Licence under Regulation 20(2) of the Customs House Agents Licensing Regulations, 2004 - Held that:- Once the suspension order was set aside, in the absence of any stay the petitioner was entitled to carry on the business under the CHA licence granted to the petitioner - the Commissioner was directed to implement the order of the Tribunal forthwith so as to enable the petitioner to carry on business under the CHA licence - the direction to implement the decision of the Tribunal shall not in any way affect the right of the Revenue to challenge the decision of the Tribunal if permissible in law or to pass any other order as was permissible in law.
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2013 (9) TMI 857
Confirmation of Duty Demand export obligation - EPCG scheme - Revenue was of the view that the assessee did not complied with the conditions of the Export Promotion Capital Goods Scheme (EPCG) - Held that:- revenue had not disputed the fact that the extension letter, dated 4-2-2010, had been issued by the Foreign Trade Development Officer, extending the obligations period, from eight years to ten years. Thereafter, a redemption letter, dated 18-4-2012, had also been issued by the Ministry of Commerce and Industry, Government of India, stating that the petitioner had discharged the export obligations. - demand set aside - decided in favor of assessee.
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2013 (9) TMI 856
Import of vehicle (BMW) under EPCG licence issued by DGFT Inasmuch as the appellant did not comply with the requirement of ITC bond, a notice was issued to the appellant proposing to confiscate the imported vehicle and also proposing to impose penalties and confiscation was confirmed. - Held that:- license issued by DGFT for import of particular model of car by homologus condition under not. no. 34/04 cannot be questioned by custom authorities confiscation not justified - importer not informed that their vehicle is first vehicle of particular model homologation certificate cannot be insisted from appellants - Bank Guarantee and Bond shall be released and discharged - Following decision of METRO PALACE HOTEL PVT. LTD. Versus COMMR. OF CUS. (IMPORTS), MUMBAI-Il [2006 (1) TMI 126 - CESTAT, MUMBAI], Rahul Bhandare Vs. CC (Import) Mumbai [2013 (2) TMI 316 - CESTAT, MUMBAI] and Commissioner of Customs Vs. Ankineedu Manganti [2010 (5) TMI 654 - KERALA HIGH COURT] - stay granted.
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2013 (9) TMI 855
Stay application - Importation of cartridges and subsequent sale to the dealers - Held that:- Commissioner (Appeal) order was not executable and stay was not granted. - Decided against Revenue.
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2013 (9) TMI 854
Waiver of pre deposit exemption denied on the ground of non- fulfilment of conditions that proportion of vitamin pre-mixes or vitamins of prawn feed, by weight, shall not exceed the standard input output norms (SION). - Notification No.21/2002 Held that:- Commissioner observed that these items are in granular/microencapsulated form but not in pellet form as mentioned in the notification. - The applicant failed to make out a prima facie case for total waiver of pre deposit of entire amount of duty - 20% of the goods were still lying with the Revenue thus the court ordered to submit 50% amount as a pre deposit on such submission rest of the duty to be waived off till the disposal of the case stay granted partly.
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2013 (9) TMI 851
Benefit of Notification No. 57/2009-2012 Confiscation of Goods u/s 113 Redemption of Goods Penalty u/s 114 and 114AA of Customs Act Waiver of Pre-Deposit - Revenue was of the view that the price submitted for export was non-Basmati Rice which was prohibited for export during the relevant time - Held that:- Under Section 129E of Customs Act there was no requirement of pre-deposit of redemption fine - The detained goods were sufficient security for realising the dues from the order and therefore there was a considerable merit in the argument of the appellants -pre-deposit of penalty for hearing the appeal was waived. The exporter had acted on the basis of notification issued by DGFT and the goods presented conformed to the prescribed standards - the goods cannot be considered as goods prohibited for export and therefore the confiscation of the goods under Section 113(d) of the Customs Act was not maintainable order was set aside regarding confiscating the goods and imposing the penalty - The request of the appellants for taking the goods back to the town without payment of any fine and penalty was accepted.
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Corporate Laws
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2013 (9) TMI 850
Oppression and mismanagemnt - Maintainability of Companys Petition u/s 399 - Whether the affairs of the holding company would include the affairs of the subsidiary company in a petition filed under sections 397, 398, 402 and 403 of the Act - Held that:- The Company Law Board had rightly concluded that the company petition was essentially a petition against the holding company - Therefore the Company Law Board found that without even going into the merits of the case and ordering investigation into the affairs of the holding company, the court cannot definitely order investigation into the affairs of the subsidiary companies - In fact, if it was found, after hearing the petition that the order of investigation can be made into the affairs of the holding company, then the provisions of section 239 would come into play and it was for the inspectors, to be appointed by the Central Government, to decide as to whether the business of the subsidiary also required to be investigated Relying upon Micromeritics Engineers (P.) Ltd. Versus S. Munusamy [2004 (8) TMI 381 - HIGH COURT OF MADRAS]. The Company Law Board had rightly stated that there need not be any direction and gave liberty to the respondent in case the respondent desires that there should be a direction for investigation into the affairs of any of the subsidiary company, it is always open to him to file separate applications in terms of section 214(2) read with section 235 of the Act - When this safeguard was given by the Company Law Board, it was not open for the respondent, at this stage, to contend that because the company application filed by him was a combined application, it had to be taken up together along with the main company petition when he had not complied with section 399(4) of the Act. Whether by impleading the subsidiary companies as the respondent, a shareholder of the holding company, without satisfying the provisions of section 399 of the Act in respect of the subsidiary companies can claim relief in respect of the subsidiary companies in terms of section 402 of the Act also - Held that:- The respondent had not even made any allegations against the subsidiary company or claimed any relief against most of the subsidiary companies in the main company petition - the subsidiary companies cannot be included in the company petition - Hence, the order passed by the learned single judge, setting aside the order of the Company Law Board deleting the subsidiary companies from the array of parties, was not correct - Inasmuch as the subsidiary company cannot be made a party to the company petition. The holding company challenging that portion of the order of the Company Law Board rejecting certain preliminary objections raised by the appellant and against the order of the Company Law Board in not dealing with certain preliminary objections raised by the appellant and against certain directions given by the Company Law Board, as rightly pointed out by the learned single judge, the Company Law Board has not made any error in recognising the statutory right of the respondent herein under law to file a petition under section 214(2) read with section 235 of the Act - Further, in view of the fact that we have categorically held that the order of the Company Law Board ordering to delete the names of the subsidiary companies from the array of parties in the company petition and permitting the holding company to file objections relating to the objections made against them was valid.
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Service Tax
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2013 (9) TMI 867
Waiver of Pre-deposit service of auction of property - Earlier CBEC has clarified that no Service Tax would be leviable when sovereign /public authorities in performing statutory functions / activities provide service and collect the fee in respect thereof. - However, the Government of India, Ministry of Finance, by order dated 14.08.2008 informed that the Circular dated 18.12.2006 would not be applicable to the petitioner. - Held that:- The specific plea of the petitioner was that in view of the uncertainty prevailing prior to the Government of India's order it could not collect the Service Tax from the growers and buyers - That apart, the question whether the petitioner was liable to pay the Service Tax or not was the subject matter of the writ petitions pending before this Court - It was also relevant to note that the petitioner had already remitted substantial part of the demand - It was pleaded that the short payment as mentioned by the Commissioner in the order was incorrect and appropriate steps were being taken for rectification. The deposit of tax demanded together with the interest and penalty would cause undue hardship to the petitioner - the interest of justice would be met if the pre-deposit of at least the penalty and interest was waived. - petitioner directed to deposit the entire tax component.
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2013 (9) TMI 866
Waiver of pre-deposit - Road Transport Service tribunal did not grant stay - The writ petitioner contends that though the Tribunal noticed facts and circumstances whereby the amount of tax were not paid by it for the bona fide reason that the DTC was under the impression Held that:- There is no dispute that the DTC is a public authority - Its consistent position before the Revenue - including the CESTAT - was that the spaces which it had given to two customers meant that the latter had to deposit the service tax and that indeed they represented through documents that such liability was being discharged - later events disclosed that this was not the correct situation and that the spaces had further been sold and that the deposits had not been made. Stay granted - The CESTAT was directed to hear the appeals without the condition of any pre-deposit and decide the appeals at its earliest convenience Decided in favour of Assessee.
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2013 (9) TMI 865
Waiver of pre-deposit - Lower appellate authorities dismissed the appeal for non deposit of predeposit as ordered - Held that:- As the lower appellate authority had exercised discretion directing deposit of tax component, a formal order having consequences has come into force. Qua the provisions of Section 86 of the Act, the order of the lower appellate authority (Commissioner (Appeals) directing pre-deposit is not appealable. The appellant has also not challenged the order dated 20.6.2011 before this Tribunal. It is axiomatic that a right of appeal is a creature of the statute. In the absence of any right of appeal provided against the order of the lower appellate authority directing pre-deposit no appeal could have been preferred before this Tribunal in any event. If aggrieved by the order of the lower appellate authority (directing pre-deposit), the assessee must seek remedy elsewhere other than before this Tribunal. The order of the lower appellate authority dated 20.6.2011 (directing pre-deposit of the adjudicated quantum of tax) is not contended to be an order patently beyond the jurisdiction of the Commissioner (Appeals) and therefore a nullity. - There was failure of pre-deposit and consequently in view of the provisions of Section 35F of the Central Excise Act, 1944, the order of Commissioner (Appeals) dismissing the appeal is impeccable and warrants no interference in the present appeal. The appeal is therefore misconceived and is accordingly dismissed, but without costs. - Decided against assessee.
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2013 (9) TMI 864
Waiver of pre deposit - Goods Transport Agency Service - Held that:- It transpires that Revenue is helpless today to defend its case in terms of the cryptic order that has come in appeal to Tribunal. As has been recorded that the appellant seeks rational decision on the three issues in controversy by a speaking and reasoned order on consideration of material facts and evidence on record. It is therefore necessary to remit back the appeal to the learned Adjudicating Authority for expeditious re-adjudication following due process of law since huge revenue of more than ₹ 1 crore is involved in the matter - whether liability of subcontractor does not arise on discharge of liability by principal contractor is a question to be examined - matter remitted back.
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2013 (9) TMI 863
Condonation of delay - Event Management Service - Commissioner rejected appeal for delay in filing appeal - Held that:- The statutory provision clearly enjoins that an aggrieved person is entitled to present an appeal within three months from the date of receipt of the decision/ order of an adjudicating authority. The conclusion by the appellate Commissioner that the adjudication order was despatched on 05.05.2011 but the appeal was filed on 15.06.2012 and therefore beyond the period of limitation, therefore discloses non-application of mind. The Commissioner (Appeals) ought to have based his conclusion as to limitation on the basis of the date of receipt of the adjudication order and not the date of despatch of the order. In the absence of any analysis and conclusion by the learned appellate Commissioner, identifying the date on which the adjudication order was received by the assessee, he could not have legitimately concluded that the appeal preferred on 15.06.2012 is beyond the period of limitation, since it was filed after a period of one year one month and ten days, from the date of despatch. The process of reasoning adopted by the Commissioner for computing the period of delay from the date of despatch is perverse - appellate order quashed and remit the appeal to the Commissioner (Appeals) for denovo determination - Decided in favour of assessee.
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2013 (9) TMI 862
Valuation - Stock broking services and banking and financial servicee - Section 67(1A) - Whether an independent analysis of Section 67 as it now stands, should be made de hors Tribunals decision in LSE Securities Ltd. (supra), for the period subsequent to 18.4.06 or Section 67 should be considered as having been not altered in view of incorporation of Explanation 1 in Rule 6 of the 2006 Rules, is more appropriately to be considered at the final hearing of the appeal. - Held that:- The valuation provision incorporated in section 67 of the Act envisaged that aggregate of commission or brokerage only shall be measure of tax. Basis of taxation was provided in express terms and no implied taxation was permitted by law. - Provision of section 67 provides the basis to determine the value of taxable service. No receipt other than commission or brokerage made by a stock broker is intended to be brought to the ambit of assessable value of service provided by stock broker. Charging section in a taxing statute is to be construed strictly - Following decision of LSE Securities Ltd. vs. C.C.E., Ludhiana [2012 (6) TMI 364 - CESTAT, New Delhi] - prima facie case is in favor of assessee - stay granted.
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2013 (9) TMI 861
Waiver of pre-deposit - site formation and clearance service - assessee contends that he had not wholly provided site formation and clearance service and that part of the service provided to M/s L&T was in respect of supply of tangible goods, since he had arranged for supply of tractors and other excavation equipment. The petitioner did not produce the contract/ agreement between himself and M/s L&T before the adjudicating authority. - Held that:- prima facie case is against the assessee - directed to deposit entire amount of service tax plus interest component - stay granted towards penalty.
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2013 (9) TMI 860
Input services - provisions of rule 9(1)(b) read with Explanation under CCR - Held that:- admittedly covered by the decision of the Tribunal in the case of JSW Steel Ltd. v. CCE [2008 (9) TMI 74 - CESTAT, CHENNAI] - Commissioner has acted contrary to well settled law, which provides that till and until the order passed by the higher authority is set aside, the same is always binding upon the lower authorities. Mere filing of appeal against the order of the Tribunal does not result in stay of the order passed by the Tribunal. It does not empower the Commissioner to ignore the order of the Tribunal unless the order of the Tribunal is set aside by the High Court or Supreme Court or the Commissioner is able to lawfully distinguish such order of the Tribunal; the Commissioner has no option than to follow such order of the Tribunal - Decided in favour of assessee. Notice issued to Commissioner requiring him to explain as to why the necessary action to initiate contempt proceedings should not be taken by the Tribunal in this matter.
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Central Excise
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2013 (9) TMI 849
Interest on delayed amount - Refund claim - delay in granting refund of more than 9 years - Held that:- chart shows that different rates of interest were prescribed by the Central Government from time to time. Copy of the said chart was handed over to respondents who could not dispute it. We, therefore, hold that in view of Section 11BB, the petitioner is entitled to get interest for the delayed refund amount - Two months time is allowed to the respondents to calculate and pay the interest on the refunded amount to the petitioner. The petitioner will be entitled for interest for the period 10th February, 2001 (which is three months from the date of application) to 20th August, 2010, the date on which the amount was refund - Decided in favor of assessee.
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2013 (9) TMI 848
Refund claim - Section 11B - Held that:- The impugned order shows that claim of the petitioner has been declined being time barred. Such question as to whether the claim is time barred or not is a question of fact - Therefore, it should be decided by the Appellate Authority in the first instance rather than to invoke the writ jurisdiction of this Court - Decided against assessee.
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2013 (9) TMI 847
Violation of standing order - petitioner who is serving as an Inspector Customs and Central Excise has filed the instant writ petition seeking the quashing of a departmental charge sheet dated 20.05.2011 issued by an officer of the rank of the Commissioner. - Held that:- petitioner has even responded to the charge sheet in terms of having filed a detailed reply. As on date even Inquiry Officer stands appointed. Against such factual back drop it would not be open for the petitioner to file the present writ petition which can be construed only as an attempt to scuttle the departmental proceedings at the very outset. It is not the case set up on behalf of the petitioner that the charge sheet has been issued by an authority lacking jurisdiction to issue the same. The veracity of the articles of charge raised against the petitioner can only be gone into by the Inquiry Officer upon undertaking an exercise of evaluation and appreciation of documents/evidence brought on record - Decided against petitioner.
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2013 (9) TMI 846
CENVAT Credit - input services - services were performed after the place of removal Held that:- Assessee was entitled to avail input service credit on the services availed by them in the course of their business of manufacturing - appellant has availed all the services in the course of business of manufacturing - appellant was entitled to avail input service credit on the services Following JSW Steel Ltd. vs. CCE Thane I [2012 (12) TMI 141 - CESTAT, MUMBAI] - For material handling and terminal handling etc. place of removal was the port of export. Waiver of Pre-deposit Interest and Penalty u/s 15(2) - The assesse had able to make out a case for 100% waiver of pre-deposit of all the dues adjudged - stay granted.
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2013 (9) TMI 845
Waiver of Pre- Deposit prima facie case - undue hardship - power of appellate authority to grant stay - Held that:- From perusal of this proviso appended to Section 35F of the Act, it becomes evident that deposit of such duty or penalty as a condition precedent for hearing the appeal may be dispensed with in case of undue hardship to such appellant after safeguarding the interest of the revenue by imposing such conditions as he or it may deem fit - It, thus, transpires that waiver of pre-deposit was not a matter of right. At the same time, it was also not a concession to be doled out by the authorities as per their whims and fancies - By no means it can be a sweet wish of any statutory authority - In short, grant of waiver was to be backed by reasons keeping in view facts of each case - There cannot be any formula of general application - There was no cut and dried short cut of universal application of rule. Relying upon Ravi Gupta Vs. Commissioner, Sales Tax [2009 (3) TMI 200 - SUPREME COURT OF INDIA ] - There can be no rule of universal application in such matters and the order had to be passed keeping in view the factual scenario involved - While going through the factual matrix and the chain of events, learned counsel for the appellant had not been able to show that there was any case of public mischief or grave irreparable personal injury or there was likely to be dwarfing of citizens' faith in the impartiality of public administration - When no factual or legal infirmity had been found in the order by the appellant and even in proceedings no case for interference with the order was made out particularly when the Appellate Tribunal had, after going through the complete record and attending circumstances, come to a firm finding that it was not a case of complete waiver - the appellant was directed to comply with the order regarding pre-deposit Decided against Assessee.
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2013 (9) TMI 844
Acceptance and adjudication of Appeal Permission to File Separate Appeal Held that:- The Commissioner (Appeals) was of the opinion that two separate appeals were required to be filed and, therefore, the Commissioner (Appeals) was considering the appeal already preferred, treating it as challenging the Order-in-Original No.62/2012-13. Without further entering into the larger question whether Rule 6A of the CESTAT (Procedure) Rules, 1982 would be applicable to the proceedings before the Commissioner (Appeals) or not, in the instant case, if the petitioner prefers separate appeal before the Commissioner(Appeals) against the Order-in-Original arising out of show cause notice dated 16.11.2011 within the period of two weeks from today, the Commissioner (Appeals) shall decide the same in accordance with law and on merits along with the appeal arising out of the Order-in-Original without raising the objection with respect to the limitation.
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2013 (9) TMI 842
Brand name used on packing materials - SSI Exemption not deniable under Notification No. 8/2003-C.E. - Exemption w.e.f. 1-10-1987 granted - Waiver of Pre-deposit - Appellant was engaged in the manufacture of plastic containers, caps, plugs which are subject to excise duty - The Department was of the view that since the appellant was clearing those goods with brand name of M/s. Dabur India Ltd. they were not entitled to the benefit of SSI exemption under Notification No. 8/2003-C.E. - Held that:- Prima facie it appeared that where a manufacturer covered under SSI exemption Notification had been clearing specified goods in the nature of packing material namely printed cartons, metal containers, adhesive, PP caps, crown cork or metal labels bearing brand name of the buyer he would not be denied SSI exemption under Notification No. 8/2003-C.E - the denial of SSI exemption to the appellant appears to be unjustified - the appellants had been able to make out a prima facie case for waiver of condition of pre-deposit of duty demand, interest and penalty - Accordingly the stay applications were allowed and the pre-deposit of duty demand, interest and penalty as a condition of hearing of the appeals Decided in favor of assesse.
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2013 (9) TMI 841
CENVAT credit - Cleared excisable goods - whether debit Against Served from India Scheme (SFIS) certificate, at nil rate of duty availing exemption under Notification 34/2006-C.E would made the goods exempted goods - separate accounts of inputs used in the manufacture of dutiable goods and in the exempted goods were not maintained, the appellant was required to pay 10% of the total price of exempted goods as per Rule 6(3)(b) of Cenvat Credit Rules, 2004 - no such payment was made - imposition of penalty under Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 - debits made under DEPB script is equivalent to payment of duty in cash Held that; It is nobodys case that the functioning of SFIS certificate is different then the functioning of DEPB scheme. In DEPB scheme the exporters are issued DEPB which allow them specific amount to be utilized as customs duty, while the SFIS scheme, the service providers are issued SFIS certificate which allow them to import or procure indigenous goods without payment of duty by debiting the said script - debits made in SFIS would not amount to exemption from payment of duty - Following decision of UNIVERSAL POWER TRANSFORMER PVT. LTD. Versus C. C. E., BANGALORE [2010 (5) TMI 411 - CESTAT, BANGALORE] - Decided in favour of assessee.
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2013 (9) TMI 840
Cenvat credit on returned goods - Rule 16 - Facility for dealing with goods requiring minor or more repair, reconditioning etc. and not for recycling their material, in which process they lose their identity in a manner that the material obtained after melting them is used partly or wholly for different set of goods afresh - Held that:- forgings are not melted at all but only re-heated and re-forged. Further the learned Consultant submits that in forging industry, there is no process involved as re-melting. As submitted by the learned Consultant, the Rule 16 provides as to how to take credit and Rule 16(2) envisages that if the process to which the rejected goods are subjected before being removed amounts to manufacture, the manufacturer shall pay duty on the goods received under sub-rule (1) and if it does not amount to manufacture, appropriate Cenvat credit has to be reversed. The learned Consultant submits that it is not the case herein that the appellant has not reversed the Cenvat credit taken. In view of this, I find that the appellant has made out prima facie case in their favour for waiver of pre-deposit and grant of stay - Decided in favour of assessee.
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2013 (9) TMI 839
Job work - declaration under form 57F(4) - goods manufactured by job worker under notification no. 214/86 was cleared by the appellants at NIL rate of duty under SSI exemption notification - Held that:- Once the Revenue took a view that the inputs could not have been sent to a job worker under Notification No. 214/86 and the process undertaken by the job worker amounted to manufacture and resulted in final products namely, re-rolled products, the duty liability would fall on the manufacturer who is a job worker in this case and not on the appellant. Further no doubt, the steel ingots manufactured by the appellant were liable to duty as small scale exemption was not available during the relevant period. However, it has to be noted that the duty demand is on the re-rolled products and not on the steel ingots. The department should have either demanded duty on the steel ingots sent out for the job work or on the re-rolled products from the job worker. Since duty demand has been made on re-rolled products and the appellant is not a manufacturer of the same, the demand is not sustainable and accordingly, the impugned order is set aside with consequential relief to the appellant. - Decided in favour of assessee.
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CST, VAT & Sales Tax
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2013 (9) TMI 868
Constitutionality of provisions - determination of entry tax - Clause (iv) of the proviso to Section 2 (h) of U.P. Tax on Entry of Goods into Local Areas Act, 2007 - Tax on market value - provisional assessment was made against the petitioner for stock transfer of cement - Held that:- provisions of Section 2 (h) (iv) and Section 4 (g) are not ultra vires of the Act. These are machinery provisions to find out the value of goods at the time of entry of goods in the State - assessment order is subject to appeal and that the petitioner can challenge the order on all the grounds, which are available to it, and to lead credible and relevant evidence to establish that the value of the goods at the time of entry into the State is not the whole sale value, which was being found by the Assessing Authority to be the value on the basis of such material, which may be produced by the petitioner before the Assessing Authority - Decided against assessee.
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2013 (9) TMI 853
Taxing sale of goods Works Contract - Whether taxing sale of goods in an agreement for sale of flat which is to be constructed by the developer/promoter is permissible under the Constitution Held that:- When the agreement between the promoter/developer and the flat purchaser is to construct a flat and eventually sell the flat with the fraction of land, it is obvious that such transaction involves the activity of construction inasmuch as it is only when the flat is constructed then it can be conveyed - There is no reason why such activity of construction is not covered by the term works contract. After all, the term works contract is nothing but a contract in which one of the parties is obliged to undertake or to execute works. Such activity of construction has all the characteristics or elements of works contract. The ultimate transaction between the parties may be sale of flat but it cannot be said that the characteristics of works contract are not involved in that transaction. When the transaction involves the activity of construction, the factors such as, flat purchaser has no control over the type and standard of the material to be used in the construction of building or he does not get any right to monitor or supervise the construction activity or he has no say in the designing or lay-out of the building, in our view, are not of much significance and in any case these factors do not detract the contract being works contract insofar as construction part is concerned. In a contract to build a flat there will necessarily be a sale of goods element. Works contracts also include building contracts and therefore without any fear of contradiction it can be stated that building contracts are species of the works contract. For sustaining the levy of tax on the goods deemed to have been sold in execution of a works contract, three conditions must be fulfilled, there must be a works contract, the goods should have been involved in the execution of a works contract and the property in those goods must be transferred to a third party either as goods or in some other form. For the purposes of Article 366(29-A)(b), in a building contract or any contract to do construction, if the developer has received or is entitled to receive valuable consideration, these things need to fully met. It is so because in the performance of a contract for construction of building, goods like cement, concrete, steel, bricks etc. are intended to be incorporated in the structure and even though they lost their identity as goods but this factor does not prevent them from being goods. Where a contract comprises of both a works contract and a transfer of immovable property, such contract does not denude it of its character as works contract. The term works contract in Article 366 (29-A)(b) takes within its fold all genre of works contract and is not restricted to one specie of contract to provide for labour and services alone. Nothing in Article 366(29-A)(b) limits the term works contract. Transfer of property in goods under clause 29-A(b) of Article 366 is deemed to be a sale of the goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made. The expression tax on the sale or purchase of goods in Entry 54 in List II of Seventh Schedule when read with the definition clause 29-A of Article 366 includes a tax on the transfer of property in goods whether as goods or in the form other than goods involved in the execution of works contract. Taxing the sale of goods element in a works contract under Article 366(29-A)(b) read with Entry 54 List II is permissible even after incorporation of goods provided tax is directed to the value of goods and does not purport to tax the transfer of immovable property. The value of the goods which can constitute the measure for the levy of the tax has to be the value of the goods at the time of incorporation of the goods in works even though property passes as between the developer and the flat purchaser after incorporation of goods - Circular is a trade circular which is clarificatory in nature only. The notification enables the registered dealer to opt for a composition scheme Following decision of K. RAHEJA DEVELOPMENT CORPORATION versus STATE OF KARNATAKA [2005 (5) TMI 7 - Supreme Court] and LARSEN & TOUBRO LIMITED & ANR. VERSUS STATE OF KARNATAKA & ANR. [2008 (8) TMI 28 - SUPREME COURT OF INDIA] Decided against assesse.
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Indian Laws
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2013 (9) TMI 852
Right to information - Partial information provided - Exemption u/s 8(1)(h) - Held that:- After the personal hearing and perusal of records, the First Appellate Authority noted that the Complainant himself is the Applicant in the above matter and he is seeking course of action taken on his own complaint. Hence, the First Appellate Authority decided that providing the information and permitting him to inspect the concerned file will not hamper the ongoing investigation. Therefore, the First Appellate Authority instructed the CPIO to permit the Appellant to inspect the records - Decided in favour of appellant.
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2013 (9) TMI 843
Country liquor shop - Advertisement Challenged Applications were invited for newly created country liquor shop Held that:- From the statement of facts in the counter affidavit we find that the allegation, that new shop had been allotted to take away the business from the petitioner and that it was within 500 meters of the periphery of the petitioner's shop, was not correct - The State Government can carve out/allocate any number of shops provided they do not violate the conditions laid down in U.P. Excise (Number of Allocation and Situation of Excise Shops) Rules 1968, as amended in the year 2008 - there was no infraction of any Rule or policy of the State Government in this case Decided against Petitioner.
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