Mumbai Court November 2005 Judgments

Indian Petrochemical Corpn. Ltd. Vs. Commissioner of C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Appellants are an assessee engaged in the manufacture of Organic Petrochemicals Plastics. By the order impugned, the CCE (A), has found: the appellants' plea that waste and scrap of capital goods is not excisable is not tenable as the Rule 57S(c)(2) specifies to pay duty on such waste and scrap. The case law cited by the appellants is also irrelevant to the present issues as in the said case law i.e. in case of Diesel Components Works v. CCE, there is no mention of credit of capital goods taken by the concerned assessee. The issue in the said case law is only in respect of waste and scrap generated by dismantling of locomotives and whether dismantling amounts to manufacture. The present issue is in respect of capital goods sold as waste and scrap and therefore, the question whether dismantling amounts to manufacture or not, does not arise. The appellants' argument that demand of duty on wires and cables as scrap is not sustainable as the said scrap had been handed over to them by M...

Kothari Shah Texturisers P. Ltd. Vs. Cce

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The Appellants, M/s. Kothari Shah Texturisers Pvt. Ltd., are manufacturers of Synthetic Filament Yarn - Polyester - Crimped availing Modvat Credit under Rule 57A.2. On verification of their balance-sheet for the year 1995-96 the department noticed that the production and sales of finished goods are higher than Page 0049 what was recorded in statutory Central Excise records. A show cause notice was issued to them demanding the duty amount of Rs. 67,595/-besides contemplating penal action. The case was adjudicated by the Additional Commissioner, Surat-1, who confirmed the demand, imposed penalty (equal amount of duty) and also ordered to pay interest under Section 11AC. Aggrieved by this Order the appellants filed an appeal before the Commissioner (Appeals) who modified the impugned Order with the following reasons: I have carefully gone through the case records and submissions made by the appellants. I find that the appellant had clandestinely removed their finished goods without pa...

Ate Enterprise Ltd. Vs. Joint Commissioner of Income Tax

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2006)102ITD110(Mum.)

1. These are two appeals filed by the assessee against the orders of the CIT(A)-VII. Mumbai, dt. 6th Nov., 2000 and 29th March, 2001 for asst. yrs. 1997-98 and 1998-99, respectively. Since common issue is involved in both these appeals, the same are being disposed of by the common order for the sake of convenience.2. The common issue arising in these appeals relates to the deduction under Section 36(1)(iii) of IT Act, 1961 (Act) on account of interest paid on borrowings for the purpose of acquisition of shares of Trumac Engineering Co. Ltd. (Trumac).3. Briefly stated, the facts giving rise to these appeals are these: The assessee-company was engaged in the business of distribution of various goods including textile machineries. It was a sole selling agent of Trumac since long. In the financial year 1996-97, the assessee had acquired certain shares of Trumac on 9th Nov., 1996 and 9th Jan., 1997 for a consideration of Rs. 388.97 lakhs. In addition, it had also acquired certain shares of...

income-tax Officer Vs. Smt. Pramila Pratap Shah

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2006)100ITD160(Mum.)

1. The only issue arising in this appeal is whether the Learned CIT (Appeals) was justified in deleting the penalty of Rs. 3,44,460 levied by Assessing Officer under Section 158BFA of the Income-tax Act, 1961 (Act).2. The facts of the case are these. The premises as well as the lockers of Shri Pratapchand Shah (deceased assessee) were searched under Section 132 of the Act on 9-2-1999. In response to notice under Section 158BC dated 9-5-2000, the representative of the assessee vide letter dated 2-6-2000, submitted as under:- The assessee expired on 30-1-1997 and the date of search was conducted on 12-2-1999 which is after death. Hence, the question of filing return by the assessee does not arise. A copy of the death certificate is enclosed herewith.The second notice under Section 158BC dated 1-12-2000 was addressed to the legal heir of Shri Pratapchand C. Shah. In response to the same, the legal heir vide letter dated 15-12-2000 reiterated the earlier stand. However, it was further sub...

Sonata Information Technology Vs. Dy Cit

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2006)7SOT465(Mum.)

These are the cross appeals filed by assessee and revenue pertaining to the assessment year 2001-02. The same were heard together and therefore, are being disposed of by the common order for the sake of convenience.The common issue arising from the cross appeals relates to the disallowance of Rs. 59,50,64,076 under section 40(a)(ii) of Income Tax Act, 1961 (hereinafter referred to as 'Act'). Briefly stated, the facts are there: The assessee is distributor of Software products. During the year under consideration, the assessee purchased software from various non-resident parties and paid total consideration of Rs. 59,50,64,076, which was claimed as revenue expenditure. The assessing officer, for the reasons given in the assessment order, treated such sum as payment on account of 'Royalty' under section 9(1)(vi) of the Act. Since no tax was deducted at source by the assessee at the time of making payments, the assessing officer disallowed the same as revenue expenditure under section 40...

Commissioner of Cus. (import) Vs. Cambata Aviation Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Heard both sides. The questions as to whether the impugned goods are capital goods and whether free import of such goods is permissible have been dealt by the adjudicating Commissioner in the following terms:- The equipment is a heavy duty Push Back Tractor used for shifting/pushing Aircrafts inside the Airports. The importers are in a service industry servicing the Aircrafts in the Airports. Para 5.4 of the Import-Export Policy says that all second-hand Capital Goods having a minimum residual life of five years can be imported by Actual Users without a licence subject to Actual User conditions and in accordance with procedure given in Hand Book Volume I. An Actual User can be of two types, Industrial and Non-Industrial. A Non-Industrial Actual User means a person who utilizes imported goods for his own use in any servicing industry. There is no doubt that importers in this case are in service industry. Examination of the goods reveals that the impugned goods are secondhand. Para 5...

Arati Advertising Service Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)6STT502

2. Shri Himatlal D. Manek, Proprietor of the firm submits that during the relevant period there was an earthquake at the place where the firm was situated resulting in death of his wife and collapse of the building. Due to these reasons he could not pay service tax in time. He further submits that the entire service tax has now been paid along with the interest. Therefore, lenient view may be taken and the penalty imposed set aside.3. On perusal of the Order-in-Original, I find that a penalty of Rs. 6,400/- has been imposed on account of 64 days delay and a further penalty of Rs. 15,700/- has been imposed on account of 792 days delay in making the payment. Thus, the total penalty imposed on the appellant is Rs. 22,100/-. It is also seen that both the lower authorities passed the order ex parte without giving an opportunity of hearing to the appellants. However, on request of the appellant, I take a lenient view in the matter and reduce the penalty amount to Rs. 2,000/-(Rupees Two thou...

Aegis Chemical Indus. Ltd. Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Heard both sides. The learned advocate for the appellant states that initially the impugned goods were imported under shipping bills dated March 4-3-1994, 4-8-1994 and 11-8-1994 and subsequently, since the goods were rejected by the foreign buyer, the same were imported on September, 20 and November, 28,1994. He further states that subsequently the impugned goods have been re-exported on July, 29 and July 5, 1995. The learned advocate contends that at the time of initial export, applicable excise duty was paid on the impugned goods without claiming any drawback or rebate of the same. However, at the time of re-import, the appellants were made to pay the impugned amounts of additional customs duty equal to excise duty. An order in this regard was issued by the original authority, according to the learned advocate, only after the appellants approached the Hon'ble High Court of Bombay against which the appellants filed an appeal but the impugned order has been passed by the lower appe...

Rafiq Hameed Sayyed Vs. Municipal Corporation of Greater Mumbai

Court: Mumbai

Reported in: 2006(2)ALLMR698; 2006(1)BomCR50

Dharmadhikari S.C., J.1. The notice of motion was taken out by the appellant original plaintiff in the suit filed by him to challenge the notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888. Pursuant to the said notice a reply was filed by the appellant and it is his case that he pointed out to the authorities that the structure which is put to composite use as P. CO. cum Pan-bidi shop is authorised and existing for a considerable period of time. Further, on an earlier occasion the appellant was directed to remove the structure because it was creating obstruction to the smooth flow of traffic. The appellant has complied with this requirement. The grievance is that despite furnishing proof of the existence of the structure as well as its authorisation and due compliance with the requisition of Municipal Corporation, the authorities ignoring entire material have directed demolition of the structure because it is not in existence prior to the datum line i.e. 17th...

Commr. of C. Ex. Vs. Videocon Appliances Limited

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The Revenue is in appeal against the order of the Commissioner of Central Excise & Customs (Appeals). In the impugned order, the Commissioner (Appeals) upheld the order of the lower authority who dropped the proceedings initiated against the respondents for denying Modvat credit on washing machines. The Commissioner concluded that since the respondents paid duty on reconditioned washing machine credit of duty taken on machines gets neutralized. The Ld. SDR contended that the respondents sought permission to bring duty paid washing machines for trading purpose under Rule 51 of Central Excise. This permission has been granted. The respondents thereafter imported washing machine and paid duty and brought them into their factory obviously for filling some more inputs in it to make it marketable. The Department's contention is that the respondents availed of credit of duty paid on these machines even though no process of manufacture had taken place when those machines were cleared f...