Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
September 30, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Articles
News
Notifications
Customs
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93/2014 - dated
26-9-2014
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Cus (NT)
Appointment of Common Adjudicating Authority - M/s Jinendra Marketing #275/8, New Timber yard layout Near N.A.K.Kalyana Mantapa, Mysore Road, Bangalore-560026
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92/2014 - dated
26-9-2014
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Cus (NT)
Appointment of Common Adjudicating Authority - M/s Bosch Limited, Hosur Road, Adugodi, Bangalore (Karnataka)-560030
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91/2014 - dated
26-9-2014
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Cus (NT)
Appointment of Common Adjudicating Authority - Srikant Jhavar, A/7/28, Krishna Nagar, Delhi
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90/2014 - dated
26-9-2014
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Cus (NT)
Appointment of Common Adjudicating Authority - Shri Pradip C. Jagada, A-606, Shyam Shikar Building, India Colony, Bapu Nagar, Ahmedabad
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89/2014 - dated
26-9-2014
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Cus (NT)
Appointment of Common Adjudicating Authority - M/s Beninca Automations Pvt. Ltd., 112/1, 3rd floor, Lalbagh Fort Road, Minerva Circle, Bengaluru-560004
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88/2014 - dated
26-9-2014
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Cus (NT)
Amends Notification No. 12/97-CUSTOMS (N.T.), dated the 2nd April, 1997
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Classification of expenses -the expenditure made was at the best for continuing the benefit for one year - such payment cannot be categorized as capital in nature as no asset is brought into existence on account of such payment - HC
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Claim of deduction u/s 80IB – income from power generated by the Wind Mill - captive consumption of the power generated by the assessee from its own power plant would enable the assessee to derive profits and gains by working out the cost of such consumption of power - HC
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Allowability of Dairy Co-operative Society Development charges – assessee has also charged 'Cess' @1% of the sale value from milk unions for which receipts have been offered as income by the assessee and when income has been offered by the assessee, then the expenditure is certainly allowable as business expenditure - HC
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Joint and several liability to make payment u/s 179(1) – Liability of directors – In the absence of any finding that non recovery of the tax due from the company can be attributed to any gross-negligence, misfeasance or breach of duty on the part of the petitioners, no order could have been made u/s 179(1) of the Act for recovering the same from the directors - HC
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Levy of penalty u/s 271(1)(c) – Gold seized and confiscated by the Central Excise Department owned by the brother of the applicant - Once it is treated as loss, non-disclosure thereof cannot be the subject matter of Section 271 (1)(c) - HC
Service Tax
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Valuation - scope of the term gross amount charged - Pre-amendment scenario i.e prior to 18-4-2006 - It is possible that the expression ‘gross amount charged’ might encompass non monetary consideration as well - Partial stay granted. - AT
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Denial of CENVAT Credit - invoice of advertisement service and letter of the Bank as produced by the appellant in support of the input tax credit availed, does satisfy all the conditions and the input service credit is available to the appellant - AT
Central Excise
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Interest on refund - when refund claim was resubmitted as per the direction of commission, the date of original filing of refund claim shall prevail and interest to be paid accordingly - AT
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Classification of the product manufactured - In the absence of specific test report in support of the product and in view of the fact that the admittedly even at the time of visit of the officers, samples were not available facilitating the test for suitability of product for use in spark ignition engine, the Commissioner’s order cannot be sustained. - AT
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Cenvat credit - denial of credit where benefit of Advance Authorization was not availed - credit cannot be denied - AT
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The fact is that as a dealer, the appellants indulged in such a deliberate and blatant act to issue invoices without the related goods - levy of penalty confirmed - AT
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100% EOU - Whether the DTA entitlement considered and fixed by the Development Commissioner can be questioned by the excise authorities or not and if there is any error in the computation of excise duty demand can be suo motu issued by the excise authorities - held no - AT
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Irregular availment of Cenvat credit - appellant is liable to discharge interest liability on the Cenvat credit wrongly taken from the date of taking of the credit till such time it is reversed. - AT
Case Laws:
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Income Tax
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2014 (9) TMI 833
Exemption u/s 80P(2)(a)(i) - Interest income from FDRs – Held that:- The present case is of surplus funds, which were not required for carrying on business of providing credit facilities to members. Half of the funds mobilised/collected from the members could be used for providing credit to the members. The balance amount had to be retained and used for specified purpose, other than providing credit facilities to members. This amount was deposited in FDRs for an average period of 500 days. Bye-laws of the appellant cooperative society prescribed that 50% of the amount mobilised/collected would not be given on credit to the members. These constituted surplus funds as has been held by the Assessing Officer and by the Tribunal. It is on these funds that the interest was earned. The interest earned from the aforesaid funds as held by the Supreme Court in Totgars’ Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT], would fall under Section 56 and would be taxable under the head "income from other sources”. With regard to the claim for deduction under Section 80P(2)(i), we find that there was no discussion or finding by the Commissioner of Income Tax (Appeals) , though this ground/issue was raised. This has happened because the Commissioner of Income Tax (Appeals), as noted above, had granted exemption to the entire income earned by the appellant-assessee under Section 80P(2)(i)(a). Learned counsel for the respondent-Revenue submits that this issue could be examined by the Commissioner of Income Tax (Appeals) on merits.
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2014 (9) TMI 832
Classification of expenses - Whether the Tribunal was justified in deleting the disallowance of expenditure claimed by the assessee, without appreciating that the expenditure was necessitated due to the coming into existence of the new entity – Held that:- payment to financial consultants for professional services in connection with the corporation debt restructuring by negotiating with Banks and Financial Institutions - Such expenditure was considered for the purpose of business and allowable in entirety in the year in which it was incurred and it was held to be revenue in nature and not capital - Following the decision in Madras Industrial Investment Corporation Limited v. CIT, [1997 (4) TMI 5 - SUPREME Court] - considering the principle of commercial trading, when the question is to be addressed, both the CIT(A) as well as the Tribunal rightly held it to be revenue in nature and the same cannot be said to be capital - It is quite apparent that the fees paid for support for LAN work; providing and upgradation of Internet Bandwidth, or for coordination with BSNL for internet connectivity, etc are not having any enduring benefit - If any consultancy is required for the said purpose, the amount clearly would come under the head of Consultancy and that surely could not be considered as capital in nature - the expenditure made was at the best for continuing the benefit for one year - such payment cannot be categorized as capital in nature as no asset is brought into existence on account of such payment –Decided against revenue.
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2014 (9) TMI 831
Claim of deduction u/s 80IB – income from power generated by the Wind Mill - Whether the Tribunal was right in holding that the assessee is entitled to the claim of deduction under Section 80IB in respect of the income relatable to the power generated by the Wind Mill that was consumed by the assessee by treating the said income as income derived fromthe eligible undertaking – Held that:- Following the decision in Tamilnadu Petro Products Ltd. Versus Assistant Commissioner of Income-tax [2010 (11) TMI 645 - MADRAS HIGH COURT] - the main requirement for claiming the exemption is that the assessee should have set up an undertaking or an enterprise and from and out of such an undertaking or an enterprise set up, any profit or gain is derived, such profit or gain derived by the assessee can be deducted in its entirety for a period of 10 years starting from the date of functioning of the set up - profit or gain could be obtained by one's own consumption of the outcome of any such undertaking or business enterprise - there is no difficulty in holding that captive consumption of the power generated by the assessee from its own power plant would enable the assessee to derive profits and gains by working out the cost of such consumption of power – the order of the Tribunal is upheld – Decided against revenue.
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2014 (9) TMI 830
Reopening of assessment u/s 148 – Bar of limitation – Held that:- Assessee contended that the notice dated 23 March 2003 is beyond the period of limitation provided u/s 149 of the Act and not extended by Section 150 of the Act - this is for the reason that there is no finding given in the order of the Tribunal that deduction claimed on account of dividend is not available u/s 80M of the Act - the assessment order passed in regular assessment u/s 143(3) of the Act had allowed the claim for deduction u/s 80M of the Act – thus, the present notice is mere change of opinion on the part of the AO - there is no allegation of any failure to disclose truly and fully all material facts necessary for assessment on the part of the petitioner - the Tribunal while reversing the order dated 22 August 1997 passed in block assessment and deleting the addition records that the assessee has brought evidence on record that the dividend has been distributed on 25 November 1995 i.e. before the due date 30 November 1995 - Thus, there is no finding given by the Tribunal in the order dated 25 October 2002 which could justify the issuing notice beyond the period of six years – relying upon ITO vs. Murlidhar B. Deo [1964 (1) TMI 5 - SUPREME Court]. The notice is not saved by Section 150 of the Act and is barred by limitation as having been issued beyond the prescribed period u/s 149 of the Act - Besides the notice having been issued almost 7 years after the end of the relevant assessment year does not indicate any failure on the part of the petitioner to disclose truly and fully all material facts necessary for assessment - the assessment order passed in the regular assessment proceedings u/s 143(3) of the Act passed on 3 March 1998 was passed by the AO subsequent to the block assessment order passed on 22 August 1997 and after considering all the facts had allowed the deduction u/s 80M of the Act - the grounds/reasons communicated to the assessee in support of the notice dated 23 March 2003 is a clear case of change of opinion and would thus be without jurisdiction – Decided in favour of assessee.
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2014 (9) TMI 829
Reopening of assessment u/s 148 – Jurisdiction to issue notice – Full and true disclosure made or not - Held that:- There can be no reason to believe that income chargeable to tax has escaped assessment on the activity of pharmacy carried out at the hospital as decided in Baun Foundation Trust vs. Chief Commissioner of Income Tax and anr. [2012 (4) TMI 172 - BOMBAY HIGH COURT] – the entire issue would require factual determination - The grant of approval u/s 10(23C) (via) of the Act has to be examined /evaluated independently for each AY - All the issues requires factual determination which can be best done by the AO in reassessment proceedings - Thus, it cannot be said that the notices are without jurisdiction – there is no reason to entertain the present petition and injunct the AO from proceeding further with the notices –Decided against assessee.
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2014 (9) TMI 828
Allowability of Dairy Co-operative Society Development charges – Held that:- The Tribunal as well as CIT(A) have arrived at a finding of fact that the genuineness of the expenses is not doubted by the revenue and thus, when genuineness of the expenses has not been doubted, then it is a finding of fact – the assessee is an apex body responsible for development of dairy activities in cooperative sector in the State of Rajasthan and the primary duty of the assessee is to take into consideration the amount incurred towards the primary level societies from which it is engaged in procurement of milk – the expenses are directly related to the business of the assessee and incurred for commercial expediency - assessee has also charged 'Cess' @1% of the sale value from milk unions for which receipts have been offered as income by the assessee and when income has been offered by the assessee, then the expenditure is certainly allowable as business expenditure – thus, the order of the Tribunal is upheld – Decided against revenue.
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2014 (9) TMI 827
Evidences lacks credibility – Acceptance of additional evidences on claim of TDS – Held that:-The assessee is a firm engaged in the business of manufacturing and sale of bio-organic fertilizers, filed income tax return - The AO noticed the receipt of unsecured loan which was received from M/s Om Textiles and M/s Elegant Diamond Co.- The Tribunal has noted that the assessee filed a copy of the return of income and a copy of his passbook, however, in absence of confirmation filed before it, it deemed it fit to grant opportunity to the assessee to substantiate such facts before the AO and remitted the matter with respect to Om Textiles to the file of the AO and directed him to verify the submissions of the assessee - the Tribunal on the basis of genuine and substantial documents, which have been adduced by the respondent and on the strength thereof, has believed the transaction of ₹ 30 lacs to have been entered into with M/s Elegant Diamond Company – since, all the three requirements have been duly satisfied, there is no reason to interfere in the order of the Tribunal – Decided against revenue.
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2014 (9) TMI 826
Outstanding Excise duty u/s 43B - Bank guarantee paid by assessee - Whether the tribunal has rightly upheld the decision of the CIT(A) in deleting addition made u/s 43B on account of Central Excise liability appearing in the balance sheet – Held that:- The excise duty was levied on fabrics and the processing charges - furnishing of a bank guarantee for whole or part of the disputed excise duty pursuant to the order of the Court is not equivalent to payment of excise duty, that is, only securing the revenue and in terms of the conditions imposed by the order of the Court - The bank guarantee cannot be straightway encashed by the revenue and until pendency of the proceedings - This was therefore not equivalent to the payment - section 43B is entitled as "certain deductions but only on actual payment" - the view taken by the tribunal is in accordance with the legal position as set out in the judgment of the Supreme Court as also in consonance with the wording of section 43B – Decided in favour of revenue.
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2014 (9) TMI 825
Joint and several liability to make payment u/s 179(1) – Liability of directors – Basis of issuing notice valid or not - Held that:- Following the decision in Maganbhai Hansrajbhai Patel v. Assistant Commissioner of Income-Tax [2012 (11) TMI 189 - GUJARAT HIGH COURT] sub-section (1) of section 179 provides for joint and several liability of the directors of a private company wherein the tax due from such company in respect of any income of any previous year cannot be recovered - The first requirement to attract liability of the director of a private limited company is that the tax cannot be recovered from the company itself. Such requirement is held to be a prerequisite and a necessary condition to be fulfilled before action u/s 179 of the Act can be taken - once it is shown that there is a private company whose tax dues have remained outstanding and the same cannot be recovered, any person who was a director of such a company at the relevant time would be liable to pay such dues - the responsibility to establish such facts is on the director. However, once the director places before the authority his reasons why it should be held that non-recovery cannot be attributed to any of the above three factors, the authority would have to examine such grounds and come to a conclusion in this respect - the lack of gross-negligence, misfeasance or breach of duty on the part of the directors is to be viewed in the context of non-recovery of the tax dues of the company - as long as the director establishes that the non-recovery of the tax cannot be attributed to his gross neglect, etc. his liability u/s 179(1) of the Act would not arise - in the absence of any consideration, the Assistant Commissioner could not have been ordered recovery of dues of the company from the director. The notice is totally silent as regards the satisfaction of the condition precedent for taking action u/s 179 of the Act, namely, that the tax dues cannot be recovered from the Company - the necessary prerequisite for resorting to the provisions of section 179 of the Act itself against the directors is not satisfied - nothing has been stated therein regarding any gross-negligence, misfeasance or breach of duty on the part of the petitioners due to which the tax dues of the Company could not be recovered - the very basis on which the respondent has proceeded, suffers from non-application of mind to the requirements for exercise of powers under section 179(1) of the Act - In the absence of any finding that non recovery of the tax due from the company can be attributed to any gross-negligence, misfeasance or breach of duty on the part of the petitioners, no order could have been made u/s 179(1) of the Act for recovering the same from the directors – thus, the order u/s 179(1) is to be set aside – Decided in favour of assessee.
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2014 (9) TMI 824
Remand order for examination of deduction u/s 54F – Held that:- The AO while passing the order u/s 154 did not appreciate and notice the correct facts - Earlier also, the AO while passing order u/s 143(3) did not notice the revised return by which the total income was enhanced – the revision, as has been observed by the CIT(A) was on account of the fact that the assessee had reduced the claim for deduction u/s 54F from ₹ 1,02,39,517/- to ₹ 76,83,538 – CIT(A) has rightly observed that the issue with regard to claim for deduction u/s 54F was not examined in the order u/s 154 of the Act – decided against revenue.
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2014 (9) TMI 823
Adjustment on sale of cylinders - Whether the Tribunal is right in deleting the prima facie adjustment made u/s 143(1)(a) in respect of sale of cylinders despite the clear provisions of section 43(6)(c)(B) of the Act – Held that:- The AO made the adjustments while processing the return u/s 143(1)(a) in respect of sale of cylinders at an amount of ₹ 16,66,800 - the assessee claimed 100 per cent depreciation on the cylinders, on sale of cylinders by reducing the same from plant and machinery - Tribunal had rightly held that at the issues with respect to the depreciation claimed by the assessee on the value of entire plant and machinery or on the value of each cylinders etc., are debatable issues and, as such, there are two views possible, and in such a situation, while processing return u/s 143(1)(a) of the Act, it was not open to the AO and or it was beyond the jurisdiction of the AO to make adjustment and consequently the adjustment made by the AO u/s 143(1)(a) of the Act has been set aside – the order of the Tribunal is upheld – Decided against revenue.
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2014 (9) TMI 822
Levy of penalty u/s 271(1)(c) – Gold seized and confiscated by the Central Excise Department owned by the brother of the applicant - Held that:- In a proceeding initiated under that provision are quasi-criminal in nature and the burden to justify the exercise squarely rests upon the revenue – relying upon ANANTHARAM VEERASINGHAIAH & CO. v. C.I.T. [1980 (4) TMI 2 - SUPREME Court] - mere intangible addition to the assessees book profits, cannot by itself, lead to the conclusion that there was any concealment - in case there existed any admission on the part of the applicant that the gold was held by him and, being under an obligation to furnish its value in the income tax returns, he did not do so, the allegation as to the concealment would have become acceptable - Though the impact of the proceedings initiated under the Central Excise Act and the Income Tax Act can constitute the basis to add income, levy of penalty on the allegation of concealment cannot be sustained - The reason is that concealment was not from the authorities of the Income Tax Department - It has already been mentioned that the applicant was not maintaining books of accounts and there was no occasion to disclose or conceal the gold from the point of view of Income Tax – though, the applicant did not have the benefit of having the gold, its value was computed as income, instead of taking the seizure thereof as loss - Once it is treated as loss, non-disclosure thereof cannot be the subject matter of Section 271 (1)(c) of the Act - The provision concerned does not deal with the concealment of losses – thus, the levy of penalty runs contrary to the provisions of the Act – Decided in favour of assessee.
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2014 (9) TMI 821
Constitutional validity of National Tax Tribunal Act, 2005 – Whether a tribunal can substitute the High Court in its appellate jurisdiction, when it comes to deciding substantial questions of law - Held that:- The question is one of great public importance and has, therefore, been placed before the Constitution Bench consisting of five judges headed by the Chief justice - The NTT is styled as a quasi-judicial appellate tribunal - It has been vested with the power of adjudicating appeals arising from orders passed by Appellate Tribunals (constituted under the Income Tax Act, the Customs Act and the Central Excise Act) – the jurisdiction was vested with High Courts - High Courts which discharge judicial functions, cannot be substituted by an extra-judicial body. Basic structure – Power of judicial review - Whether the NTT Act violate the "basic structure" of the Constitution – Held that:- "separation of powers" creates a system of checks and balances, by reasons of which, powers are so distributed, that none of the three organs transgresses into the domain of the other - The concept ensures the dignity of the individual - The power of "judicial review" ensures, that executive functioning confines itself within the framework of law enacted by the legislature - the demarcation of powers between the legislature, the executive and the judiciary, is regarded as the basic element of the constitutional scheme - When the judicial process is prevented by law, from determining whether the action taken was or was not, within the framework of the legislation enacted, it would amount to the transgression of the adjudicatory/determinatory process by the legislature - Therefore, the exclusion of the power of "judicial review", would strike at the "basic structure" of the Constitution. The power of "judicial review" vested in the High Court under Articles 226 and 227 of the Constitution, has remained intact - This aspect has a substantial bearing to the issue – it will also lead to some important inferences - it must never be overlooked, that since the power of "judicial review" exercised by the High Court under Articles 226 and 227 of the Constitution has remained unaltered, the power vested in High Courts to exercise judicial superintendence over the benches of the NTT within their respective jurisdiction, has been consciously preserved – thus, the contention that the NTT Act violates the "basic structure" of the Constitution cannot be accepted. Transfer of jurisdiction – Maintenance of standards - Whether while transferring jurisdiction to a newly created court/tribunal, it is essential to maintain the standards and the stature of the court replaced – Held that:- The three wings of governance would operate in their assigned domain/province - But the judicial power could be allowed to be exercised by an analogous/similar court/tribunal, with a different name - by virtue of the constitutional convention, while constituting the analogous court/tribunal, it will have to be ensured, that the appointment and security of tenure of judges of that court would be the same, as of the court sought to be substituted - Parliament was not precluded from establishing a court under a new name, to exercise the jurisdiction that was being exercised by members of the higher judiciary, at the time when the constitution came into force - But when that was done, it was critical to ensure, that the persons appointed to be members of such a court/tribunal, should be appointed in the same manner, and should be entitled to the same security of tenure, as the holder of the judicial office, at the time when the constitution came into force - The newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service, as were available to the judges of the court sought to be substituted. Transfer of jurisdiction is permissible, but in effecting such transfer, the court to which the power of adjudication is transferred, must be endured with salient characteristics, which were possessed by the court from which the adjudicatory power has been transferred - But whenever there is such transfer, all conventions/customs/practices of the court sought to be replaced, have to be incorporated in the court/tribunal created - The newly created court/tribunal would have to be established, in consonance with the salient characteristics and standards of the court which is sought to be substituted. Allowability to made appearances by the CS - Interpretation of section 13(1) of NTT - Whether Company Secretaries should be allowed to appear before the NTT to represent a party to an appeal in the same fashion, and on parity with, Accountants and Whether Section 13(1) of the NTT Act allows Accountants to represent a party to an appeal before the NTT is valid – Held that:- Members of the NTT would most definitely be confronted with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Territoriality, Law related to Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes, and other Miscellaneous Provisions of Law, from time to time - The NTT besides these statutes, will not only have to interpret the provisions of the three statutes, out of which appeals will be heard by it, but will also have to examine a challenge to the vires of statutory amendments made in the provisions, from time to time - They will also have to determine as to whether the provisions relied upon had a prospective or retrospective applicability. In terms of Section 15 of the NTT Act, the NTT would hear appeals from the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) only on "substantial questions of law", it is difficult to appreciate the propriety of representation, on behalf of a party to an appeal, through either Chartered Accountants or Company Secretaries, before the NTT - The determination at the hands of the NTT is shorn of factual disputes - It has to decide only "substantial questions of law" - Chartered Accountants and Company Secretaries would at best be specialists in understanding and explaining issues pertaining to accounts - The issues would fall purely within the realm of facts – it is difficult to accept the prayer made by the Company Secretaries to allow them, to represent a party to an appeal before the NTT - Even insofar as the Chartered Accountants are concerned, it cannot be held that allowing them to appear on behalf of a party before the NTT, would be unacceptable in law – thus, the claim of Company Secretaries is rejected to represent a party before the NTT - the prayer made by Company Secretaries is declined - also, Section 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, is unconstitutional and unsustainable in law. Constitutional validity of Sections 5, 6, 7, 8 and 13 of the NTT Act – Held that:- Section 5(2) of the NTT Act mandates, that the NTT would ordinarily have its sittings in the National Capital Territory of Delhi - It is imperative for the legislature to ensure, that redress should be available, with the same convenience and expediency, as it was prior to the introduction of the newly created court/tribunal - the mandate incorporated in Section 5(2) of the NTT Act to the effect that the sittings of the NTT would ordinarily be conducted in the National Capital Territory of Delhi, would render the remedy inefficacious and cannot be accepted - Section 5 of the NTT Act is not sustainable in law, as it does not ensure that the alternative adjudicatory authority, is totally insulated from all forms of interference, pressure or influence from co-ordinate branches of Government – thus, there is no alternative, but to hold that sub-sections (2), (3), (4) and (5) of Section 5 of the NTT Act are unconstitutional - even though the Attorney General pointed out, that the power of "judicial review" under Articles 226 and 227 of the Constitution had not been taken away, yet he acknowledged, that there would be implicit limitations where such power would be exercisable - Therefore, the composition of the NTT would have to be on the same parameters as judges of the High Courts - So Section 6(2)(b) of the NTT Act is declared unconstitutional - Section 7 cannot be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of the NTT, Secretaries of Departments of the Central Government - The interests of the Central Government would be represented on one side, in every litigation before the NTT - It is not possible to accept a party to a litigation, can participate in the selection process, whereby the Chairperson and Members of the adjudicatory body are selected. Chairperson/Member is appointed to the NTT for a duration of 5 years - Chairperson/Member is eligible for reappointment, for a further period of 5 years - a provision for reappointment would itself have the effect of undermining the independence of the Chairperson/Members of the NTT – thus, Sections 5, 6, 7, 8 and 13 of the NTT Act have been held to be illegal and unconstitutional and in the absence of these provisions which have been held to be unconstitutional, the remaining provisions have been rendered otiose and worthless, and as such, the provisions of the NTT Act, as a whole, are hereby set aside – Decided in favour of Petitioner.
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Customs
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2014 (9) TMI 838
Waiver of pre-deposit - Preparation of false documents in respect of some exports, i.e. DEPB Script - Held that:- Section 129E enables the persons aggrieved by the orders of the lower authority to prefer an appeal to the CESTAT. The further direction to deposit duty and interest demanded or the penalty levied - facially would be applicable to aggrieved assessee, who has suffered adverse orders. It cannot apply to these circumstances where the assessee as in the present case is a respondent. In these circumstances, the direction of the CESTAT to the appellant to deposit 10 lakhs is unwarranted. Accordingly the said order is set aside - Decided in favour of assessee.
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2014 (9) TMI 837
Confiscation of goods - Provisional release of goods - petitioner was further directed to furnish a bank guarantee of the differential duty after the provisional assessment - Held that:- justice would be sub-serve if the respondent authorities are directed to activate themselves in determining the value under Rule 12 of the said Rules and to make a final assessment. - Court, therefore, directs the respondent No. 1 to take steps for final assessment of the duty which in no circumstances should exceed three weeks from the date of communication of this order. Needless to mention that while making a final assessment the authorities would adhere to the statutory procedures and the norms and shall see that the natural justice is not violated - Decided in favour of assessee.
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2014 (9) TMI 836
Confiscation of goods - Provisional release of goods - Bank guarantee - Held that:- Justice would be subserve if the respondent authorities are directed to activate themselves in determining the value under Rule 12 of the said rules and to make a final assessment. This Court, therefore, directs the respondent no. 1 to take steps for final assessment of the duty which in no circumstances should exceed three weeks from the date of communication of this order. Needless to mention that while making a final assessment the authorities would adhere to the statutory procedures and the norms and shall see that the principle of natural justice is not violated. - Petition disposed of.
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Service Tax
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2014 (9) TMI 857
Demand under reverse charge mechanism - expenditure for advertising and publicity - sponsorship service - Held that:- appellants has more weightage than the other side. According to the learned CA, the entire demand is time barred and appellant themselves have segregated the items where they are liable to pay tax, and they have paid it with interest. Further, it was submitted that there could not have been any intention to evade tax or there could not have been any hesitation to pay tax since the appellant would have been eligible to take credit of the service tax paid by them and use the same for payment of service tax on the services rendered by them. That being the position, we have to take a view that appellant has made out a prima facie case for waiver. Accordingly, the requirement of payment of balance dues is waived and stay against recovery is granted during the pendency of appeal - Stay granted.
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2014 (9) TMI 856
Denial of refund claim - tax already paid by appellant - Goods later exempted under Notification No. 8/2005, dated 1-3-2005 - Held that:- Ruling of the Hon’ble Supreme Court is dated on 16-8-1988, whereas the Section 11B has been amended by Amendment Act No. 44 of 1980 wherein for the words “from the date of payment” the words “from the relevant date” was substituted. Thus, in view of the amendment made in the Section, the ruling of the Hon’ble Apex Court is not applicable in the facts of the present case. Further, in the facts and circumstances of the case, I find that the Commissioner (Appeals) has erred in holding that the appeal is hit by limitation as the appellant has filed refund claim by 2 months’ delay from the date of deposit of the tax. Thus, the appeal is allowed and the order of Commissioner (Appeals) is set aside and the Order-in-Original is restored. It is further held that the appellant is entitled to refund of the whole amount of Service Tax paid, disallowed by Revenue audit and claimed back from appellant vide Debit Note dated 31-10-2009 - Following decision of Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills [1988 (8) TMI 103 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2014 (9) TMI 855
Waiver of pre-deposit - activity of sale of water - renting of immovable property - Goods Transport Agency - Held that:- The supply of water by the petitioner resulting in receipt of consideration therefor was admittedly prior to 1-7-2010. It was therefore incumbent that Revenue should have clearly identified the appropriate taxable service into which supply of water falls. This exercise is absent either in the show cause notice or in the impugned adjudication order. We are therefore prima facie satisfied that the conclusion that supply of water is a taxable service, prior to 1-7-2010, is not sustainable. Renting of immovable property - Held that:- The endeavour of the Revenue to classify the transaction as renting of immovable property is prima facie mis-conceived since no ingredients of transfer of immovable property as defined to fall within the ambit of renting of immovable property under Section 65(105)(zzzz) of the Act are seen from the nature of the activities summarized in para 19 of the show cause notice. The relevant portion of the impugned adjudication order is equally vague. We are therefore prima facie satisfied that no relevant criteria of renting of immovable property are discernible in the transaction pursuant to which ₹ 1,72,34,500/- was received as consideration by the petitioner from M/s. Asian Tanking Pvt. Ltd . GTA service - held that:- . That the petitioner is liable to remit Service Tax as the recipient of goods transport agency service is not contested. - pre-deposit ordered in respect of GTA service only - partial stay granted.
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2014 (9) TMI 854
Denial of refund claim - Unutilized accumulated CENVAT credit - Held that:- Respondent has provided investment advisory service to GPC Management located outside India and does not have any business in India. It is also not in dispute the respondent has received the payment in convertible foreign exchange. - the issue came up before this Tribunal in the case of Paul Merchants Ltd. (2012 (12) TMI 424 - CESTAT, DELHI (LB)) and in that case also this Tribunal has held that if the services recipient is located outside India and the same has been utilized outside India, therefore it is a case of export of service. Further in this case of Vodafone Essar Cellular Ltd – [2013 (7) TMI 178 - CESTAT MUMBAI] - this Tribunal held that telecom services provided to inbound roaming international consumers would qualify as export of service - Decided against Revenue.
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2014 (9) TMI 853
Waiver of pre deposit - Valuation - scope of the term gross amount charged - Pre-amendment scenario i.e prior to 18-4-2006 - Commercial or industrial construction service - Held that:- If the purpose of the 2006 amendments were reformatory i.e. removal of a mischief that resulted in a narrow or restricted enactment as to the value that amounts to a taxable value for computation of service tax, then on application of the ‘mischief rule’ of statutory interpretation, we are required to consider the state of the legislation prior to the amendment; the apparent mischief that the prior legislation entailed; and the mischief that stood avoided by the subsequent amendment. If this interpretative principle were applied, it might be legitimate to derive assistance from the definition of the expression ‘gross amount charged’, post 18.04.2006 to the same expression occurring in the unamended Section 67(1), prior to 18.04.2006 as well. Whether this is the appropriate interpretative principle will however await the hearing of the appeal. It is possible that the expression ‘gross amount charged’ might encompass non monetary consideration as well - Partial stay granted.
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2014 (9) TMI 852
Denial of CENVAT Credit - advertisement services and Banking & financial Services - Redemption fine - Held that:- Documents satisfy the condition of Rule 9(2) of the Cenvat Credit Rules read with Rule 4A(i) of the Service Tax Rules, 1994, except minor clerical error. It is further evident from the show-cause notice that no opportunity was given to the appellant to remove the minor clerical error in the documents and accordingly, there is violation of principles of natural justice before disallowing the same. I hold that invoice of advertisement service and letter of the Bank as produced by the appellant in support of the input tax credit availed, does satisfy all the conditions and the input service credit is available to the appellant. - Decided in favour of assessee.
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2014 (9) TMI 834
Waiver of pre deposit - CENVAT Credit - Revenue denies the service tax element reimbursed to the dealer to be claimed as input credit - Reimbursement of service tax as Input service tax - Held that:- there is no strong evidence to repel the argument of the learned Counsel as to deposit of service tax by the dealers. No doubt, the same service provided by dealers that ought to have been provided by principal, should not be subjected to double taxation. Accordingly, prima facie, following the order passed by the Tribunal in the case of Samsung India Electronics Pvt. Ltd. vs. CCE, Noida [2009 (7) TMI 1073 - CESTAT NEW DELHI], there shall be waiver of requirement of pre-deposit during pendency of appeal - stay granted.
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Central Excise
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2014 (9) TMI 848
Disallowance of CENVAT Credit - credit demand was confirmed on the basis that the goods received from M/s Surya Roshni were tube lights and not M.S. Tubes and that the PVC/HDPE Tubes were not eligible for capital goods Cenvat credit - Held that:- the terms ‘pipes and tubes’ covers all pipes and tubes whether of iron and steel or of PVC or HDPE. Therefore, disallowing the credit in respect of PVC/HDPE pipes which according to the appellant were used in effluent treatment plant is totally wrong - As regards the MS tubes received under the invoice of M/s Surya Roshni Ltd., the Department s stand that the goods supplied are tube lights and not MS tube is absurd. If the Department had any doubt the necessary verification could have been done instead of the disallowing the credit. The fact as to whether M/s Surya Roshni Ltd. have a steel division and manufacture steel tubes could be checked from their web-site on the internet. Moreover, when the invoice itself mentions the goods as MS tubes of heading 73063090 and from the value of the goods, the same cannot the tube lights, it is absurd to infer just on the basis of the name of the supplier that the goods supplied were tube lights and that too without making slightest effort to ascertain whether M/s Surya Roshni manufacture only the light fittings or also manufacture steel pipes also. order disallowing the credit in respect of M/s Surya Roshni Ltd. is, therefore, not sustainable. The same is set aside - Decided in favour of assessee.
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2014 (9) TMI 847
Interest on refund - Whether interest on the refund of unutilized credit for the period of delay is payable in terms of the provisions of Section 11BB - Held that:- Though the judgment is silent about the rate of interest, the learned Counsel for the appellant states that the interest had earlier been paid @ 6% and in terms of the notification issued under Section 11BB also, the rate of interest is the same. As regards the date of filing of refund claim and the date from which the interest liability will start, the order dated 09/02/09 of the Tribunal mentions the dates of filing of these refund claims as 04/02/03 and 11/02/03. However, the learned DR pleads that as has been held by the Commissioner (Appeals), these refund claims had been resubmitted on 26/06/04 and 24/06/04 and it is the latter dates which should be treated as the dates of filing of refund claims and Department’s interest liability will start only after expiry of the period of three months of both dates. On this point, I find that when originally the refund claims had been filed on 04/02/2003 and 11/02/2003, even if the same were resubmitted on 26/06/04 and 24/06/04 consequent to the order of the Commissioner, it is the former dates i.e. 04/02/03 and 11/02/03 which have to be treated as the dates of filing of refund claims and interest liability will be start from the dates on which the three months period from which these dates expired. The impugned order, therefore, is set aside - Decided in favour of assessee.
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2014 (9) TMI 846
Classification of the product manufactured - Revenue is of the view that the product manufactured by the appellant is Motor Spirit on the ground that the flash point of the product is below 250C, while the appellant is of the view that the product cannot be classified as motor spirit on the ground that that the product manufactured by the appellant did not satisfy the condition of use as fuel in spark ignition engines - Held that:- Directions of the Tribunal have not been carried out in view of the fact that the second requirement of suitability for use spark ignition engine has not at all been examined. The opinion of CTSM of IOCL Vadodara is also not conclusive since he himself has clarified that from the given distillation range of solvents, it appears that these solvents can be blended with other petroleum streams to meet the specifications for motor spirit. This cannot be considered as conclusive opinion. Further, Tribunal in case of M/s. Indu Nissan Oxo Chemical Industries Ltd. v. CCE, Vadodara as reported in [1998 (3) TMI 220 - CEGAT, MUMBAI], had held relying on U.S. Customs case that the term ‘suitable for use’ means actually, practically and commercially fit for such use and not casually incidental or possible use. In view of the above, Commissioner’s reliance upon the opinion of CTSM cannot be held appropriate. In the absence of specific test report in support of the product and in view of the fact that the admittedly even at the time of visit of the officers, samples were not available facilitating the test for suitability of product for use in spark ignition engine, the Commissioner’s order cannot be sustained. - Decided in favour of assessee.
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2014 (9) TMI 845
Cenvat credit - denial of credit where benefit of Advance Authorization was not availed - Held that:- Appellant had been issued Advance Authorization and since they did not use those Advance Authorization for duty free import of inputs, they got the same invalidated and obtained invalidation letters in favour of certain domestic suppliers for duty free supply of the inputs. However, domestic suppliers instead of supplying the inputs duty free in terms of Notification No. 44/01 - CE (NT) dated 26/06/01 supplied those inputs on payment of duty. The appellant took Cenvat credit of that duty. - as held by the Apex court in the case of CCE & CUS vs. MDS Switchgear Ltd. (2008 (8) TMI 37 - SUPREME COURT), while considering availability of Cenvat credit to a manufacturer in respect of some inputs procured by him from another manufacturer, the quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officials incharge of the recipient unit. In this case, there is no evidence produced that the assessment of duty at the end of the domestic suppliers had been reviewed and the duty paid by them has been refunded to them. When this is so, there is no question of denying the Cenvat credit to the appellant. In view of this, the impugned order is not sustainable. The same is set aside. - Decided in favour of assessee.
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2014 (9) TMI 844
Issuance of Cenvatable invoices in respect of steel goods viz CR strips - there was no manufacturing activity undertaken - fraud - Penalty under Rule 26 of Central Excise Rules 2002 - Held that:- Penalty on the appellants can be imposed and it is all the more so because in the present case, as has been mentioned earlier there were goods supplied but the said goods were not relatable to the invoices issued by the appellants. as has been mentioned earlier, the evidence is clearcut including the confessional statement of the appellants which was never retracted. The fact is that as a dealer, the appellants indulged in such a deliberate and blatant act to issue invoices without the related goods based on invoices issued by M/s. Pasondia again without the related goods. In such a situation No mitigating factors favouring the appellants at all. - Decided against assessee.
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2014 (9) TMI 843
Supply of motor spirit for blending with ethanol by availing the concessional rate of duty prescribed under Notification No. 62/2002-C.E. - Violation the terms and condition of Notification No. 28/2002-C.E., dated 13-5-2002 - Held that:- The entire clearance of motor spirit for blending with ethanol is governed by the Procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. As per Rule 6 of the said Rules - “it is the recipient/buyer of the goods, who has to lead evidence with respect to the intended usage and not the supplier of the goods and if the recipient/buyer has not informed to the excise authority, they are liable to discharge differential duty liability along with interest.” Therefore, in respect of the supplies made to IOCL and HPCL, the responsibility and liability to discharge the differential duty liability lies with those units and not with the appellant, who is only the supplier of the goods. - Matter remanded back - Decided in favour of assessee.
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2014 (9) TMI 842
100% EOU - Whether the DTA entitlement considered and fixed by the Development Commissioner can be questioned by the excise authorities or not and if there is any error in the computation of excise duty demand can be suo motu issued by the excise authorities - Benefit of concessional rate of excise duty under Notification No. 22/2003-C.E., dated 31-3-2003 - Held that:- This issue has been settled by the decisions in the case of Amitex Silk Mills Pvt. Ltd. and Virlon Textile Mills Ltd. case [2005 (10) TMI 128 - CESTAT, NEW DELHI] in favour of the appellant and against the Revenue. As regards the question whether clearances effected into the DTA under Para 6.8(a) of the Foreign Trade Policy, “deemed exports” could be considered or not, the Circular relied upon by the Revenue deals with the situation where supplies are made under Para 6.9 of the Foreign Trade Policy and not to clearances made under Para 6.8(a). If the Revenue has any doubt whether the clarification given in the letter dated 26-12-2008 would apply to computation of DTA entitlement under they should have referred the matter to the Development Commissioner before taking suo motu action. Therefore, the impugned order confirming the demand without seeking any clarification from the Development Commissioner is clearly unsustainable in law. The Development Commissioner is vested with the power to decide the quantum of DTA entitlements and not the Commissioner of Central Excise. In these circumstances, we are of the considered view that the matter has to go back to the adjudicating authority for making a reference to the Development Commissioner in this regard and thereafter, based on the clarification received from the Development Commissioner to consider whether any proceedings need to be initiated against the appellant or not. Thus, the appeal is allowed by way of remand - Decided in favour of assessee.
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2014 (9) TMI 841
Levy of Mandatory penalty or not - Violation of provisions of Sections 11AC and 11AB - Held that:- Admittedly, in this case goods had been cleared in the month of September, 2004 and duty liability arose by the end of September, 2004. Moreover, the goods had been cleared through delivery challans and the weighment slips were duly recorded in their records, therefore the provisions of Section 11AC of the Act, i.e. fraud, collusion, wilful misstatement, suppression of facts and contravention of the provisions of the Act/Rules with intent to evade payment of duty, are not attracted. Therefore, mandatory penalty for these acts is not leviable. Further, I find that a penalty is proposed to be imposed on shortages of inputs. I find that the respondent had purchased 11,004 MT in a period of six months and there is a negligible shortage of 29 MT in their inputs and that may occur due to the weighment of inputs on various weighment machines. In these circumstances, it cannot be held that the respondent had cleared the inputs clandestinely and no evidence has been produced by the Revenue to this effect. In these circumstances, the provisions of Section 11AC of the Act are not attracted, therefore mandatory penalty is not leviable - As the respondent has paid the duty within the same month, therefore interest is not leviable - Decided against Revenue.
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2014 (9) TMI 840
Maintainability of appeal before commissioner (appeal) - period of limitation - date of service tax order in original dispatched by registered post without acknowledgement due - Held that:- Dispatch of the Order-in-Original dated 31-8-2001 passed by the Assistant Commissioner was by registered post and not by registered post with acknowledgement due, which is the requirement of Section 37C. Therefore, sending of the order by registered post without acknowledgement due cannot be said to be the proper service of the order as per the requirement of law. As regards the Revenue’s plea that another copy of the order had been served on the respondent as it evident from the initials of the respondent’s employee on the covering letter dated 10-12-2002 of the department, forwarding the order, the plea of the respondent is that no order was enclosed with this letter. We agree with the findings of the Commissioner (Appeals) that from this letter, there is no indication that the person who had received this letter had also received the Order-in-Original dated 31-8-2008. In view of this, we agree with the Commissioner (Appeals)’s findings that the appeal had been filed well within time and is not time-barred. - Commissioner (Appeals) has not gone into the merits of the case and has simply observed that he agrees with the findings of his predecessor in the Order-in-Appeal dated 29-8-2003 - Matter remanded back decision on merit.
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2014 (9) TMI 839
Irregular availment of Cenvat credit - recovery of interest on the Cenvat credit availed wrongly - held that:- where the Cenvat credit is taken or utilised or erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of the output services and the provisions of Sections 11A and 11AB shall apply mutatis mutandis for effecting such recoveries. Recovery of interest is under Rule 14. Only the mode of recovery is as provided for under Section 11AB of the Central Excise Act. There is no one to one correlation between taking of credit and its utilisation in the case of Cenvat credit as in the case of set-off. It is in view of this reason, this Tribunal in the case of Dr. Reddy’s Laboratories Ltd. (2013 (3) TMI 86 - CESTAT BANGALORE) had come to the conclusion that the decision of the Hon’ble High Court in the case of Bill Forge Pvt. Ltd. (2011 (4) TMI 969 - KARNATAKA HIGH COURT) is per incuriam. We are in agreement with the view taken by this Tribunal in the case of Dr. Reddy’s Laboratories Ltd. (supra), therefore, we are of the view that the decision of the Hon’ble Apex Court in the case of Ind-Swift Laboratories Ltd. case (2011 (2) TMI 6 - Supreme Court) would apply to the facts of the present case before us and the appellant is liable to discharge interest liability on the Cenvat credit wrongly taken from the date of taking of the credit till such time it is reversed. Therefore, we do not find any infirmity in the impugned order. - decided against assessee.
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2014 (9) TMI 835
Cenvat Credit - input service credit - credit on after sales service tax charges paid by the dealer - Held that:- issue is no more res integra and stands settled in the light of decision of the Tribunal in the case of CCE, Nashik vs. Mahindra and Mahindra Ltd. reported as [2012 (8) TMI 530 - CESTAT, MUMBAI] wherein the Tribunal has in the similar circumstances, have confirmed after sales service expenses as a part of the assessable value , and held the assessee entitled to take input service credit - Decided in favour of assessee.
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CST, VAT & Sales Tax
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2014 (9) TMI 851
Detention of goods - Undervaluation of goods - Evasion of tax - Held that:- The respective petitioners shall pay the tax as demanded in the impugned notices, and on payment of tax as determined in the impugned notices, the respondent is directed to release the detained goods and is also at liberty to proceed further in respect of the composition notices issued to the respective petitioners, and the petitioner in all the writ petitions is also granted liberty to contest the same on merits and in accordance with law - Decided in favour of assessee.
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2014 (9) TMI 850
Tamil Nadu Value Added Tax Act, 2006 - Section 22(2) & 27 - Security Bond - penalty - bank guarantee - Whether when the assessee is unable to comply with the condition to furnish security bond for the balance of tax and penalty, it can be allowed to execute a personal bond as an alternate remedy - Held that:- Following decision of previous precedents petitioner is directed to execute a personal bond for the balance of tax and entire penalty of ₹ 1,24,099/- within a period of two weeks from the date of receipt of a copy of this order. Upon the petitioner furnishing the personal bond as aforesaid, the impugned order shall stand modified entitling the petitioner to interim order of stay of collection of tax pending disposal of the statutory appeal - Decided conditionally in favour of assessee.
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2014 (9) TMI 849
Waiver of pre deposit - appeal dismissed on non-deposit of the pre-deposit amount, i.e. 60% of the tax amount - Held that:- Further time is granted to the petitioner to deposit / make the payment of 60% of the tax demand (as directed earlier by the Tribunal) within a period of FOUR WEEKS from today and on such deposit being made, the First Appellate Authority is directed to hear, decide and dispose of the First Appeal preferred by the petitioner on merits and in accordance with law. However, if aforesaid deposit is not made within a period of four weeks - Decided partly in favour of assessee.
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