Mumbai Court October 2005 Judgments

Paulson Polymers Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The appellants are engaged in the manufacture of lubricating preparations by blending base oils and additives on its own account as also on job work basis. There is no dispute that these lubricating preparations are being cleared by the appellants on payment of duty.Apart from the above activities, the appellant is also receiving duty paid lubricating preparations imported by M/s. Motul Mafatlal Lubricants Limited (Motul) on payment appropriate customs duty and additional duties of customs, in bulk for repacking the same into various sizes on job work basis. While packing, the appellant is blending the said imported oils with a colouring material. The main question in the present appeal as to whether said activity of blending the lubricating oil with colouring material amounts to manufacture in terms of Section 2(f) of Central Excise Act, 1944.2. Commissioner in his impugned order has held that as per definition of 'manufacture' given in Section 2(f) of the Act, the manufacture inc...

Avishkar Processing Pvt. Ltd. and Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The appellants are processors of MMF and they do job work for other traders. On 17/10/96 the officers visited the premises of the assessee and found that the sta(sic)tory records could not be correlated with the quantity of goods received and manufactured. Based on the enquiries made a Show Cause Notice was issued. The it. Commissioner confirmed the proceedings so initiated a duty amount and imposed a penalty of Rs. 65,000/- under Rule 173Q and Section 11AC & penalty under Rule 209A was imposed on the Director. In appeal, the Commissioner (Appeals) confirmed the penalty of Rs. 65,000/- on the assessee and Rs. 20,00(V- on the Director denying the benefit of 25% of penalty amount under Section 11AC. Even though the duty was paid prior to the issue of show cause notice and within a month of duty being determined. Hence these appeals.2 After hearing both sides and considering the issue involved it is found and held. a) Penalty under Rule 209A cannot be upheld, as imposed on the Dir...

Nair Coal Services Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The application for waiver of pre-deposit of service tax of Rs. 2,78,39,954/- and penalties of Rs. 100/- per day under Section 76, Rs. 7000/- under Section 77 and Rs. 500/- under Section 75A of the Finance Act, 1994 arises out of the order of Commissioner (Appeals) who has dismissed the appeal of the appellants against the confirmation of service tax demand by the Dy. Commissioner, on the ground that they failed to comply with the direction of deposit of 50% of the amount.2. None appears for the applicants in spite of notice; hence we heard the ld. DR and perused the records. The demand has been confirmed holding the applicants liable to pay service tax as clearing & forwarding agents. The Commissioner (Appeals) vide his stay order has directed pre-deposit of 50% of the tax amount and furnishing a Bank Guarantee for the balance amount of service tax. The issue as to whether the applicants are liable to service tax as clearing & forwarding agents, will be gone into by us whe...

Mc Kinsey and Co., Inc. Vs. Asstt. Director of Income Tax

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2006)6SOT186(Mum.)

The short issue that I am required to adjudicate in all these appeals is whether or not the Commissioner (Appeals) was justified in holding that the monies received by these companies from India branch office of Mc Kinsey & Co. Inc. constitute" fees for included services" within the meanings of article 12(4) of the India US treaty, and, are accordingly liable to be taxed in India.The appellant companies are residents of the United States of America, and are covered by the India USA Agreement for Avoidance of Double Taxation and Prevention of Fiscal Evasion 187 ITR (Statute) 102 - referred to as 'the India US treaty' in this order. There is no dispute about this factual position, as also the fact that the appellant companies did not have any permanent establishment in India. The appellant companies have rendered certain services to the India branch office of Mc Kinsey Inc. (referred to Mc Kinsey India, in short). Mc Kinsey Inc. is worldwide engaged in the business of providing stra...

Mckinsey and Co., Inc. Vs. Assistant Director of Income Tax

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2006)99ITD549(Mum.)

1. The short issue that I am required to adjudicate in all these appeals is whether or not the CIT(A) was justified in holding that the monies received by these companies from India branch office of Mckinsey & Co. Inc. constitute "fees for included services" within the meaning of Article 12(4) of the India-US treaty, and, are accordingly liable to be taxed in India.2. The appellant-companies are residents of the United States of America and are covered by the India-USA Agreement for Avoidance of Double Taxation and Prevention of Fiscal Evasion [(1991) 187 ITR (St.) 102] referred to as 'the India-US treaty' in this order. There is no dispute about this factual position, as also the fact that the appellant-companies did not have any permanent establishment in India.The appellant-companies have rendered certain services to the Indian branch office of Mckinsey Inc. (referred to McKinsey India, in short).McKinsey Inc. is worldwide engaged in the business of providing strategic consulta...

Commissioner of Customs (P) Vs. Continental Petroleum

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The Revenue seeks transfer of the above appeal to the New Delhi Bench of the tribunal on the ground that against the same impugned order, the respondent-company has preferred an appeal before the Delhi bench.2. We have heard both sides. On 13th September, 2005 when the matter came up for the first time before the bench, the bench had directed the Registry to put up the file before the Hon'ble President for passing orders on the transfer application. The file has come back to us for passing the judicial order.Harpreet International v. Commissioner of Customs, Amritsar that bench has held that transfer from one zonal bench to another can be made only by general or special order passed by the President. It is therefore clear that this Bench has no jurisdiction to entertain any application for transfer of an appeal from one zonal Bench to another. We, therefore, hold that the applications filed before this bench is not maintainable and direct the Registry to place the application and a...

Commissioner of C. Ex. and Cus. Vs. JaIn Plastics and Chemicals Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The dispute pertains to valuation of excisable goods cleared by the respondents. The Commissioner (Appeals) held that the discount claimed by the respondents is admissible as a trade discount. The department's contention right from the stage of show cause notice was that the discount claimed by the respondents has not been passed on to the customers. The original authority dropped the proceedings initiated in four show cause notices as he was satisfied that a factory price was established and that the department does not question the respondents claim for deduction when the goods were sold at the factory gate and therefore, the department should not question as to whether the discount claimed has been passed on or not when the goods are cleared from the assessees regional depots. The Revenue preferred an appeal against this order to the Commissioner who in the impugned order held that the discount claimed are mentioned in the stock transfer invoice and that it has not been establis...

Gaurang Goradia Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These appeals arise from the same order of the Commissioner of Customs, Air Port, Sahar, Mumbai and are being disposed by this common order after hearing both sides. 1. I order that the goods namely Sony Digital Video Recorder, Sony Digital Audio Recorder, Power Cable etc. be assessed at Rs. 27,69,000/-. 2. I also order confirmation of differential duty amounting to Rs. 13,59,500/- on the assessable value of Rs. 27,69,000/- after adjusting Rs. 25.000/- paid as duty by Shri Gaurang Goradia on his arrival. 3. I order confiscation of the Sony Digital Video Recorder, Sony Digital Audio Recorder, Power Cable etc. under the provisions of Section 111(1) and (m) of the Customs Act, 1962. 4. However I give an option to Shri Gaurang Goradia to redeem the confiscated goods on payment of redemption fine of Rs. 15,00,000/-(Rupees fifteen lakhs only) under Section 125 of the Customs Act, 1962. 5. I Confiscate two samsonite suitcases under seizure used for carrying above stated goods under Sectio...

Welcome Hotel Vs. Commissioner of Cus. and C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. On hearing both sides on the application for waiver of pre-deposit of Service Tax of Rs. 2,09,723.40 and Rs. 28,544.35 and penalties of Rs. 500/- under Section 75A, Rs. 2,38,267/-under Section 76, Rs. 1000/- under Section 77 and Rs. 4,76,534/- under Section 78 of the Finance Act, 1944. We find that in the case of Express Hotels Pvt. Ltd. v.Commissioner of Central Excise, Vadodara on similar issue, the Bench vide its Order No. S/178/WZB/05-V-IV(C.S.T.B) dt. 6-10-2005 directed pre-deposit of above one-third of the total Service Tax amount as a condition precedent for hearing of the appeal. In this case the amount of Service Tax demanded as a result of holding that the applicant is providing Convention Service is Rs. 2,09,723.04 while Rs. 289,544.35 is the amount of tax demanded for the reason that the applicants has been held to be providing Event Management Services. Following the same route as in M/s. Express Hotel cited supra, We therefore direct pre-deposit of Rs. 75,000/- toward...

Santogen Silk Mills Vs. Commissioner of C. Ex. and Cus.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The appellants is a manufacturer of MMF falling under Chapter 54 Schedule to CETA. Physical verification of stock lying in the appellants unit revealed that it did not tally with the bank balance.On being asked about the shortages, Shri K.M. Nair Manager-cum-Authorized signatory of the mills stated that they had not made the entry of production and clearance of the goods on 24/25-12-94 due to shortages of staff etc. The officers' noticed that even after the entries are made the physical stock of PTY was short than shown in the RG 1 Register. Duty was sought to be demanded on the shortages noticed. Investigation further revealed that the appellants removed goods without payment of duty. Statements of the concerned persons were recorded. The appellant paid an amount of Rs. 38,99,214 being BED & AED payable on the goods alleged to have been removed without payment of duty. In the impugned order the Commissioner confirmed the duty deposited, imposed an equal amount of penalty under...