Mumbai Court January 2007 Judgments

Commissioner of Customs Vs. Akbaraly Karimdjee Mamod

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Heard ld DR. None appeared for the respondents. The revenue is in appeal against the order passed by the Commissioner of Customs demanding absolute confiscation of the foreign currency seized from the respondent-passenger and also proportionate penalty. Whereas the Commissioner of Customs has ordered confiscation of the seized foreign currency under Section 113(d), (c) and (h) of the Customs Act, 1962 and releasing the same on payment of redemption fine of Rs. 4 lakhs under Section 125(i) of the Customs Act, 1962 and penalty of Rs. 3 lakhs under Section 114 of the Customs Act, 1962. Having not satisfied with the same, the revenue is in appeal.2. In the instant case, one passenger by name Shri Akabaraly Karimdjee Mamod holding Madagascar passport was intercepted by the officers of Air Intelligence Unit, after he cleared himself from immigration and customs on his departure to Singapore by Air India Flight No. AI-436 dated 14-1-99 and recovered 320 notes of 100 US dollars equivalent ...

Fag Precision Bearings Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)10STJ116CESTAT(Mum.)bai

2. The ld. Counsel for the appellant submitted that the appellant is a service availer and not a service provider. He submitted that as per the show cause notice dated 12.1.99 it would be seen that no service tax was demanded from the appellant. The ld. Counsel interalia contended that the show cause notice has been drawn by the Deputy Commissioner and as such action of dropping show cause notice as validated by the Parliament, by way of amendment to the Finance Act, 2000. Any action taken to revise the Validating Act of the Parliament would amount excessive usage of powers by the Commissioner and would also amount to an Act which is illegal and contrary to the law.3. The ld. JDR appearing on behalf of the Revenue has reiterated the impugned order.4. After hearing and perusal of the records, I find that the main ground of the ld. Counsel is that the levy of service tax on the appellant is illegal. This needs to be looked into by the Commissioner in the light of the decision of Hon'ble...

Nitco Tiles Ltd. Vs. Commissioner of Customs (import)

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The above application for waiver of pre-deposit of Anti Dumping Duty of Rs. 5,18,26,066/- levied on Vitrified Tiles manufactured by M/s.Nanhai Shangyuan Oulian Construction Ceramic Co. Ltd. China, (hereinafter referred to M/s. Nanhai) and exported by M/s. Prestige General Trading, Dubai, U.A.E. to the applicants herein during the period November 2002 to February 2003 arises out of the order of the Commissioner of Customs (Appeals) Mumbai.2. The brief facts required for prayer appreciation and understanding of the issue in dispute are as under: On 2nd May 2002, Central Government issued Notification No. 50/2002-Cus. imposing provisional anti dumping duty in respect of Vitrified/Porcelain Tiles originating in, or exported from China & U.A.E. This notification was valid upto 1-11-2002. During the period 6-11-2002 to 27-2-2003, the applicants imported such tiles from China under cover of Bills of Entry. On 1-5-2003, the Central Government issued Notification No. 73/2003-Cus. imposi...

Commissioner of Customs Vs. Palus Engineering Industries

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)(116)ECC541

1. Heard both sides. The revenue is in appeal. None appeared for the respondents. The assessee engaged in manufacturing of engineering goods and utilized the services of goods transport operators and have paid service tax of Rs. 29,441/- for the period 16.11.97 to 1.6.98.Thereafter having filed refund claim on the ground that they are SSI unit and as per notification No. 43/97-CE dated 5.11.97, they are not required to pay service tax. The adjudicating authority sanctioned their refund claim but credited the amount to the consumer welfare fund under Section 12C of Central Excise Act, 1944. Therefore, the assessee preferred an appeal before the Commissioner (Appeals), Central Excise, Pune, who in turn has allowed the refund claim in cash. Therefore, the revenue is aggrieved and filed the present appeal.2. The Commissioner (Appeals) while applying the ration laid down in the case of Punjab Beverages (P) Ltd. v. CCE held that the doctrine of unjust enrichment is not applicable to the pre...

Mancon Enterprises Vs. Cit

Court: Income Tax Appellate Tribunal ITAT Mumbai

1. These two appeals are filed by the assessees. The relevant assessment year is 2004-05. The appeals are Afiled against the orders passed by the Commissioner under Section 263 of the Income Tax Act, 1961.2. The assessees in these cases are partnership firms running the businessof rendering services and warehousing services. These two assesseesentered into a joint venture project to construct a multi-storied commercial complex. In fact, the assessees purchase certain lands and the rights in respect of the tenants and thereafter proceeded to construct the said g commercial complex. The construction of building complex was entrusted to M/s. Larsen & Toubro on the basis of an agreement. As per the agreement L&T would construct the entire multi-storeyed commercial complex at their own cost on the land provided by the assessees jointly. In consideration thereto, the assessees would allot a specified built up area to M/s. L&T. The project being a huge one, it was completed in ph...

Dolmar Ship Services (P) Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)9STJ115CESTAT(Mum.)bai

1. Heard both sides. The issue relates to levy of service tax on storage of empty containers. The appellants have taken the following grounds in their Memorandum of Appeal: 1) That the learned Commissioner (Appeals) has passed the impugned order in gross violation of natural justice without considering and appreciating the vital submissions made. 2) That the learned Commissioner (Appeals) has passed the impugned order in desultory and cavalier fashion without considering and appreciating the facts of the case in their proper perspective. 3) That the learned Commissioner (Appeals) ought to have appreciated that as per Section 65 of the Finance Act, 2002 "Storage and warehousing" includes liquids and gases but does not include any service provided for storage of agricultural produce or any service provided by a cold storage. In the instant case only empty containers, which are bereft of any goods, which are stored. The empty containers are merely enclosures for the goods and not goods, ...

Apr Packaging Limited Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)9STJ109CESTAT(Mum.)bai

1. Heard both sides. The issue relates to demand of interest on delayed payment of service tax on Clearing & Forwarding Agents. The appellants have taken the following grounds in their Memorandum of Appeal: 1. Because the order has been passed in a pure mechanical fashion without appreciating the legal provisions in a correct perspective manner and is also based on surmises and conjunctures and neither learned Assessing Authority nor the Appellate Authority considered the facts on record. 2. Because while passing the impugned order the Assessing Authority as well as the Appellate Authority overlooked and did not consider that no amount of service tax was payable by the appellant. 3. Because while passing the impugned order the learned authorities failed to consider that the application for refund by the appellant is still pending and without disposing off, it was not appropriate for the authorities to pass any order for recovery of interest or penalty. 4. Because no show cause not...

Commissioner of Central Excise Vs. Linde-kca-dresden Gbh

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)9STJ112CESTAT(Mum.)bai

1. Heard both sides. The issue relates to payment of service tax, penalty and interest. This appeal is filed by the Revenue. The Revenue has taken the following grounds in their Memorandum of Appeal: (I) In this case, the main issue is related to the question -whether the notice had provided any service - which was coming into preview of service tax or not. Commissioner (Appeals) relied on the noticee's submission that since the agreement was terminated without providing any service, the appellants not liable to pay service tax However, a close look of termination agreement reveals that noticee's claim is factually not correct. It is clear from para 1.b of Preamble of termination agreement that "LKCA" has completed draft conceptual design, though there are different viewpoint on the scope of its completion between WRBPL and LKCA". Thus, it is quite clear that before agreement of termination the service of "Draft Conceptual Design" was provided by M/s. LKCA. Thus Commissioner (Appeals)...

Surindra Engg. Co. Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2007)(117)ECC199

1. We have heard both sides on the appeal against the confirmation of central excise duty demand of Rs. 23,96,506/- on MS plates found short in the factory of the appellants during the period April 1996 to February 1998, April 1998 and August 1998, on the basis of the fact that actual closing balance of the goods in RG23A part I for these months did not tally with the closing balance for the respective months - a quantity of 459.058 and 741.945 MT of MS plates was found short, and penalty of Rs. 10,000/- imposed on the appellants herein.2. We find force in the submission of the appellants. Show cause notice issued on 1.11.2002 proposing recovery of excise duty under Rule 57AH (Modvat Credit Rules) read with the proviso to Section 11A of the Central Excise Act, 1944, is bad in law for the reason that Rule 57AH of the Cenvat Credit Rules cannot be invoked for the purpose of recovery of modvat credit taken under the erstwhile Modvat Credit Rules, which were substituted by the Cenvat Cred...

Cfl Securities Ltd. Vs. the Dcit (Osd Ii), Cen. Range - 7

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2008)110ITD611(Mum.)

1. The assessee is in appeal before us against the order of Id. CIT(A), Cen. V, Mumbai dated 17/7/2000 passed for assessment year 1996-97. The first grievance of assessee relates to disallowance of Rs. 3,58,963/- out of interest paid to National Stock Exchange by treating the same to be of payment on capital account.2. The brief facts of the case are that assessee company has filed return of income on 26/11/96 declaring an income of Rs. 1,57,265/-. It is engaged in the business of shares and security broker under National Stock Exchange. On scrutiny of the account it revealed to the A.O that assessee has debited a sum of Rs. 3,79,974/- in the P&L Account as interest paid. Out of this amount a sum of Rs. 3,58,963/- is relating to the interest paid to National Stock Exchange on delayed payment of capital market last installment of Rs. 25.00 lacs. The A.O issued show cause notice to the assessee inviting its explanation as to why this interest should not be disallowed. In response to...