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2015-VIL-140-RAJ|VAT |High Court Cases | 27.03.2015

... clusion in sales turnover - Delivery of diesel by Road through containers by the assessee to the Railways at the delivery point - Whether freight by road forms part of the sales turnover for the purposes of levy of sales tax and freight is required to be included in the sales turnover and thus sales tax is required to be levied – HELD - As per terms and conditions in the contract, the seller was required to deliver the goods at the destination after taking into consideration the transit risk and all other liability in transit - at destination on the corporation selling price to the general trade on the date of delivery for... [Read more]

... clusion in sales turnover - Delivery of diesel by Road through containers by the assessee to the Railways at the delivery point - Whether freight by road forms part of the sales turnover for the purposes of levy of sales tax and freight is required to be included in the sales turnover and thus sales tax is required to be levied – HELD - As per terms and conditions in the contract, the seller was required to deliver the goods at the destination after taking into consideration the transit risk and all other liability in transit - at destination on the corporation selling price to the general trade on the date of delivery for each supply and when there is a specific reference of delivery at consignees' storage/ consumer pumps, it prescribes that price built up will be ex-depot price plus delivery charges/octroi/local levies/ Surcharges, Transportation charges at actual Sales Tax and any other levy as applicable from time to time, it will be the responsibility of the assessee and it was the duty of the assessee to deliver the goods at the destination. The Tax Board has rightly come to the conclusion that the freight is includable in the sale price - According to the conditions of the rate contract the sale price of the petroleum products includes the actual delivery charges, freight and the transit risk of the goods is upon the assessee and as such, the amount received by the assessee from the purchasers towards delivery charges and freight falls within the definition of Sec. 2(36) of the Act - Assessee being unable to lead any evidence of the freight being charged separately and having been paid separately, the Tax Board has rightly come to the conclusion that the freight is part of the turnover and sales tax is leviable on the part of the freight – Appeal dismissed [Read less]

2015-VIL-155-CESTAT-CHE-ST|SERVICE TAX |CESTAT Cases | 27.03.2015

... Invoice number does not contain the address and registration number of the service provider – HELD - Entire averment of learned counsel is verifiable from the appeal folder. When that is examined in terms of para 4.5 of Adjudication order, that establishes truth of averment. Therefore, in absence of spurious transaction made, claim for Cenvat credit should not be denied. Accordingly, appellant succeeds for which appeal is allowed and stay application is disposed

2015-VIL-156-CESTAT-CHE-ST|SERVICE TAX |CESTAT Cases | 27.03.2015

... vice tax paid on receivable is adjustable against future liability. Tax having been deposited before arise of liability that does not given rise to the presumption of unjust enrichment by appellant also rules out realization of such tax from the service recipient. Accordingly, adjustment of such tax against future liability is undeniable. Accordingly, appeal is allowed

2015-VIL-153-CESTAT-DEL-CE|CENTRAL EXCISE |CESTAT Cases | 27.03.2015

... - Compounded levy scheme for induction furnace units – HELD - The only basis for denial of the exemption benefit is that this production capacity has not been achieved by some additional machinery and in this regard the Commissioner has rejected the appellant’s claim regarding purchase of some additional machinery and equipment on the ground that the claimed purchase of machinery/equipment by the appellant from outside the State of Uttaranchal is not recorded in the register maintained at the Commercial Tax Department check post - However, this finding of the Commissioner is contrary to the order dated 24/3/07 of the Depu... [Read more]

... - Compounded levy scheme for induction furnace units – HELD - The only basis for denial of the exemption benefit is that this production capacity has not been achieved by some additional machinery and in this regard the Commissioner has rejected the appellant’s claim regarding purchase of some additional machinery and equipment on the ground that the claimed purchase of machinery/equipment by the appellant from outside the State of Uttaranchal is not recorded in the register maintained at the Commercial Tax Department check post - However, this finding of the Commissioner is contrary to the order dated 24/3/07 of the Deputy Commissioner, Uttaranchal Commercial Tax Department. On going through this order, it is clear that the Commercial Tax Department has accepted the appellant’s claim regarding purchase of components of furnace from outside the state and has decided to impose penalty only on the ground that the procedure prescribed in this regard was not followed. The DC has clearly mentioned that the purchases of the assessee have been found recorded in their books of accounts - In view of this, the ground on which the Commissioner has rejected the appellant’s claim regarding purchase of the induction furnace components is not correct. Moreover, it is also seen that the increase in the capacity had been achieved by increasing the height of the crucible and this fact has not been disputed. Once it is accepted that the increase in the capacity of crucible was achieved by increase in its height, in view of the judgment of Hon’ble Uttarakhand High Court in the case of Uttaranchal, the benefit of exemption under Notification No. 50/03-CE cannot be denied – Assessee appeal allowed [Read less]

2015-VIL-16-SC-CE|CENTRAL EXCISE |Supreme Court Cases | 27.03.2015

... tion No.1/93 dated 28.2.1993 – HELD – Reading of Para 4 of amended Notification No. 59/94-CE dated 1.3.1994 it becomes clear that amendment was brought to deny the benefit of Notification to those SSI units which have been making use of branded good for another person irrespective of whether the brand name owner himself is SSI unit or not. It was also made abundantly clear here that the requirement of affixation or brand name by the SSI unit was immaterial. That was the purpose for substituting the word "affixing" by the word "bearing" - After this amendment in para 4 it was not necessary that there has to be affixation of... [Read more]

... tion No.1/93 dated 28.2.1993 – HELD – Reading of Para 4 of amended Notification No. 59/94-CE dated 1.3.1994 it becomes clear that amendment was brought to deny the benefit of Notification to those SSI units which have been making use of branded good for another person irrespective of whether the brand name owner himself is SSI unit or not. It was also made abundantly clear here that the requirement of affixation or brand name by the SSI unit was immaterial. That was the purpose for substituting the word "affixing" by the word "bearing" - After this amendment in para 4 it was not necessary that there has to be affixation of the name or mark on the goods - The impugned order of the Tribunal is untenable and not in accordance with law - While giving its decision the CEGAT has gone by the unamended para 4 without taking into consideration the amended para and the implication thereof - non-payment of duty by the respondent was bona fide act, having nurtured a belief that it was not liable to pay the excise duty on the goods - Penalty under the provisions of Sec.11A(C) is set aside – Appeal partly allowed [Read less]

2015-VIL-138-KAR|VAT |High Court Cases | 26.03.2015

... installation of electrical components for wind turbine generator (WTG), erection and commissioning of WTG - integrated single composite contract – HELD - A contract has to be read as a whole and the purpose for which the contract was entered into by the parties has to be ascertained from the terms of the contract. The intention of the parties is to enter into an agreement for the installation, erection and commissioning of WTGs - The perusal of the offer letter, with the terms and conditions of the work orders entered into by the assessee, proves that the assessee has executed a single integrated contract which cannot be ... [Read more]

... installation of electrical components for wind turbine generator (WTG), erection and commissioning of WTG - integrated single composite contract – HELD - A contract has to be read as a whole and the purpose for which the contract was entered into by the parties has to be ascertained from the terms of the contract. The intention of the parties is to enter into an agreement for the installation, erection and commissioning of WTGs - The perusal of the offer letter, with the terms and conditions of the work orders entered into by the assessee, proves that the assessee has executed a single integrated contract which cannot be segregated. The scope of work and the insurance clause specifically establishes that the assessee has entered into an agreement for the installation, erection and commissioning of the WTGs, which includes labour work also - Thus it is clear that in a works contract involving transfer of goods and labour, tax is payable under Section 15(1)(b) on the total consideration of the works contract. If the labour contract is an individual contract involving only labour, no tax is payable. In the case on hand, the assessee has segregated the activities as per the work orders executed against the offer for erection and installation of WTGs. It is not the case of receiving labour related charges for executing pure labour work without transferring any property in goods. The entire contract, if perused as a whole, is in the nature of composite single integrated contract, though designed as it is four separate work orders. All the segregated activities are related to the very same project with the very same customer involving transfer of goods and labour - The contract executed by the assessee is a composite, single, integrated contract and all the four activities mentioned in the work orders as individual activities are intrinsically linked with each other and the main object is for the installation and commissioning of WTGs as per the offer letter - Petitions filed by the assessee are dismissed [Read less]

2015-VIL-139-MAD-ST|SERVICE TAX |High Court Cases | 26.03.2015

... or catering Service’ provided in the factory for its employees treating them as ‘Input Service – HELD – Matter settled by Ultratech Cement Ltd 2010-VIL-71-BOM-ST - Appeal is answered in favour of the assessee

2015-VIL-14-SC-CE|CENTRAL EXCISE |Supreme Court Cases | 25.03.2015

... f cartons in the assessable value of the final product – HELD - Goods are generally sold in the wholesale market at the "factory gate" - The Collector of Central Excise (Appeals) has categorically stated in his order that these containers were placed in paper cartons of various sizes for transportation "from the factory gate" for sale to individual customers or as stock transfers. Therefore, on the facts of this case, we find that the test laid down in the aforesaid judgment in the case of Hindustan Safety Glass Works Ltd would not be applicable - No merit in this case – Revenue appeal dismissed... [Read more]

... f cartons in the assessable value of the final product – HELD - Goods are generally sold in the wholesale market at the "factory gate" - The Collector of Central Excise (Appeals) has categorically stated in his order that these containers were placed in paper cartons of various sizes for transportation "from the factory gate" for sale to individual customers or as stock transfers. Therefore, on the facts of this case, we find that the test laid down in the aforesaid judgment in the case of Hindustan Safety Glass Works Ltd would not be applicable - No merit in this case – Revenue appeal dismissed [Read less]

2015-VIL-137-DEL|VAT |High Court Cases | 25.03.2015

... or in rejecting the assessee’s contention that the goods in question were inter state sales within the meaning of Section 3(a) of the Central Sales Tax Act - material to prove that the movement of goods was caused by and was the result of the contract of sale – HELD - In the present case, the assessee was able to substantiate its contention that 20 of the transactions were, in fact, inter state sales. This was because each one of them had the necessary supporting document in the form of GRs. However, in the case of 6 transactions, there is no material to show that the movement of goods was caused by and was the result of t... [Read more]

... or in rejecting the assessee’s contention that the goods in question were inter state sales within the meaning of Section 3(a) of the Central Sales Tax Act - material to prove that the movement of goods was caused by and was the result of the contract of sale – HELD - In the present case, the assessee was able to substantiate its contention that 20 of the transactions were, in fact, inter state sales. This was because each one of them had the necessary supporting document in the form of GRs. However, in the case of 6 transactions, there is no material to show that the movement of goods was caused by and was the result of the contract of sale. The assessee counsel contends that this Court must consider the facts in totality of circumstances i.e. 20 out of 26 transactions are undisputed and that given the factual compulsion i.e. the inability to use a formal carrier the assessee should not be prejudiced. Though this submission is attracted, the Court is at the same time aware that there is no presumption either way that an inter state sale claimed by the assessee is one per se - Tender of a C Form by the selling dealer raises a fundamental presumption that the purchasing dealer is a registered dealer. However, that is as far as the presumption can be taken. As to whether the transaction itself was covered by an inter state sale or otherwise is a burden that the assessee has to discharge, that it did so in other 20 cases but was unable under these 6 cases precisely underscores or highlights the burden placed upon it. In these circumstances, the Court is of the opinion that the substantial question of law sought to be urged by the assessee has to be answered against it and in favour of the revenue – Appeal dismissed [Read less]

2015-VIL-13-SC-CE|CENTRAL EXCISE |Supreme Court Cases | 25.03.2015

... f Electro Deposition anti-rust so that the shelf life of the bumpers, grills, etc – Activity amounts to manufacture or not – Reversal of Modvat Credit - Revenue contention that process of ED coating which led to value addition, would, in fact, amount to "manufacture" and that therefore, the "input" would not be the same input so as to qualify under sub-rule(ii) on a mere reversal of MODVAT duty – HELD - Mere value addition does amounts to manufacture - The inputs procured by the appellants in the present case, continue to be the same inputs even after ED coating and that Rule 57F(ii) proviso would therefore apply when such... [Read more]

... f Electro Deposition anti-rust so that the shelf life of the bumpers, grills, etc – Activity amounts to manufacture or not – Reversal of Modvat Credit - Revenue contention that process of ED coating which led to value addition, would, in fact, amount to "manufacture" and that therefore, the "input" would not be the same input so as to qualify under sub-rule(ii) on a mere reversal of MODVAT duty – HELD - Mere value addition does amounts to manufacture - The inputs procured by the appellants in the present case, continue to be the same inputs even after ED coating and that Rule 57F(ii) proviso would therefore apply when such inputs are removed from the factory for home consumption, the duty of excise payable being the amount of credit that has been availed in respect of such inputs under Rule 57A – Revenue argument cannot be accepted for two basic reasons. First, we would be adding words to Rule 57F(1) to the effect that value additions made to inputs covered by sub-rule (ii) would also suffer duty even if there is no manufacture. Second, sub-rule (3) and (3A) apply to an entirely different factual scenario, as has been conceded by learned counsel for Revenue, and it is only after all the conditions under the said sub-rules are met that duty attributable to inputs contained in partially processed inputs would then become dutiable – Appeal is allowed and the judgment of CEGAT is set aside [Read less]

2015-VIL-136-P&H-ST|SERVICE TAX |High Court Cases | 25.03.2015

... ration and maintenance of Airport Metro Express Line, New Delhi - Revised ST-3 Returns - inadvertent error on Appellant part in not mentioning that it had claimed CENVAT credit in respect of capital goods – Validity of writ petition – Question of law - HELD – Petitioner had admitted that it had allegedly inadvertently not mentioned that it had claimed CENVAT credit in respect of capital goods and that it had inadvertently shown the same under the category of “input” in its returns. Whether it was an inadvertent error or not is not a question of law - Even the issue as to whether the relevant material was suppressed or not ... [Read more]

... ration and maintenance of Airport Metro Express Line, New Delhi - Revised ST-3 Returns - inadvertent error on Appellant part in not mentioning that it had claimed CENVAT credit in respect of capital goods – Validity of writ petition – Question of law - HELD – Petitioner had admitted that it had allegedly inadvertently not mentioned that it had claimed CENVAT credit in respect of capital goods and that it had inadvertently shown the same under the category of “input” in its returns. Whether it was an inadvertent error or not is not a question of law - Even the issue as to whether the relevant material was suppressed or not is not a pure question of law. By the impugned order, the Commissioner has held that the petitioner has suppressed material with an intent to evade payment of duty. The petitioner contends that the fact of having availed of CENVAT duty was disclosed in the returns. It is necessary, however, to see whether the extent of disclosure in the returns was sufficient compliance. It would be necessary to ascertain whether the extent of disclosure would have enabled the assessing authority to determine whether in law the petitioner was entitled to CENVAT credit or not. There are various issues of fact which would be required to be considered. Even assuming that there was a disclosure of the fact of the petitioner having availed the credit, it would be necessary to ascertain whether there were other relevant facts which were necessary to be disclosed and whether the non-disclosure thereof constituted suppression – There is no reason to interfere at this stage in exercise of our extra-ordinary jurisdiction when the issue can be raised before the appellate Tribunal. It would be appropriate for the petitioner to challenge the order by filing an appeal before the Tribunal – Writ petition dismissed [Read less]

2015-VIL-152-CESTAT-MUM-ST|SERVICE TAX |CESTAT Cases | 25.03.2015

... muneration paid to the Overseas Commission Agent – HELD - Appellant is not liable to tax on reverse charge basis prior to the period 18.4.2006. Thus, the demand fully set aside along with penalty and interest. So far the demand in appeal No. ST/133/09 is concerned, we hold that the demand prior to 18.4.2006 is set aside. The appellant shall only be liable to pay the demand of Service Tax subsequent to 18.4.2006 along with interest as per Rule. In the facts and circumstances granting the benefit of Section 80, we set aside all the penalties including under Section 78... [Read more]

... muneration paid to the Overseas Commission Agent – HELD - Appellant is not liable to tax on reverse charge basis prior to the period 18.4.2006. Thus, the demand fully set aside along with penalty and interest. So far the demand in appeal No. ST/133/09 is concerned, we hold that the demand prior to 18.4.2006 is set aside. The appellant shall only be liable to pay the demand of Service Tax subsequent to 18.4.2006 along with interest as per Rule. In the facts and circumstances granting the benefit of Section 80, we set aside all the penalties including under Section 78 [Read less]

2015-VIL-15-SC-CE|CENTRAL EXCISE |Supreme Court Cases | 25.03.2015

... yarn – Payment of excise duty on the basis of the costs, which according to the appellant is the cost of production of the yarn – HELD - Section 4(1)(b) of the Act stipulates that in a case like this, the value has to be determined in such a manner as may be prescribed. This manner is prescribed in Rule 6 (b)(i) of the Central Excise (Valuation) Rules, 1975 - A bare reading of Rule 6(b) manifestly points out that in those cases where the excisable goods are not sold by the assessee but are consumed by assessee himself, namely, in case of the captive consumption, the value of comparable goods produced or manufactured by th... [Read more]

... yarn – Payment of excise duty on the basis of the costs, which according to the appellant is the cost of production of the yarn – HELD - Section 4(1)(b) of the Act stipulates that in a case like this, the value has to be determined in such a manner as may be prescribed. This manner is prescribed in Rule 6 (b)(i) of the Central Excise (Valuation) Rules, 1975 - A bare reading of Rule 6(b) manifestly points out that in those cases where the excisable goods are not sold by the assessee but are consumed by assessee himself, namely, in case of the captive consumption, the value of comparable goods produced or manufactured by the assessee or by any other assessee is to be taken into consideration - Since the appellant itself is selling same very yarn in the open market, as per the aforesaid provision the said market value would clearly become the value of the comparable goods produced by the assessee itself - Appellant is entitled to adjustment of the costs which are incurred in the sale of the same product in the open market as that cannot be included in the cost in respect of yarn which to be captively consumed - In the facts of this case, we are of the opinion that no penalty is warranted – Appeal partly allowed [Read less]

2015-VIL-06-MSTT|VAT |Miscellaneous | 25.03.2015

... over - HELD – On plain reading of section 2(25) and 2(33), service tax cannot be read into sale price since the definition of ‘sale price’ and ‘turnover of sales’ is not as wide as in Andhra Pradesh General Sales Tax Act. Therefore, the decision in Central Wines cannot be stretched to include service tax into the sale price - The service tax is leviable on service value. It has no relation with the goods. It is independently leviable on value of service under the Finance Act. So on plain reading of the inclusive part of the definition of ‘sale price’ u/s.2(25), the service tax could not form the part of sale price - The se... [Read more]

... over - HELD – On plain reading of section 2(25) and 2(33), service tax cannot be read into sale price since the definition of ‘sale price’ and ‘turnover of sales’ is not as wide as in Andhra Pradesh General Sales Tax Act. Therefore, the decision in Central Wines cannot be stretched to include service tax into the sale price - The service tax is leviable on service value. It has no relation with the goods. It is independently leviable on value of service under the Finance Act. So on plain reading of the inclusive part of the definition of ‘sale price’ u/s.2(25), the service tax could not form the part of sale price - The service tax and VAT are mutually exclusive. Therefore, it would not be liable to VAT under MVAT Act - Determination order of the Commissioner is not sustainable in law and liable to be set aside – Value of goods supplied in execution of work contract is determined in accordance with the rule 58 of the MVAT Rules. The VAT is levied on the value of goods supplied in execution of works contract. In addition, the assessing authority added service tax into the sale price so determined. The said is not permissible as the service tax and VAT are mutually exclusive and service tax would not be a part of sale price – Appeal partly allowed [Read less]

2015-VIL-151-CESTAT-MUM-ST|SERVICE TAX |CESTAT Cases | 24.03.2015

... le for claiming refund of the service tax paid on the commission paid to the commission agents @10% of the FOB value for the entire period i.e October to December, 2008 or whether the Revenue is correct in granting refund to the appellant @2% of the FOB value for the period October 2008 to 06/12/2008 and subsequently @10% of the FOB value as provided in Notification no. 33/2008-ST – HELD - On a perusal of Notification no. 33/2008-ST we find that the said notification does not indicate that the words ‘ten percent' shall be effective in the Notification 41/2007-ST from the date when it was issued. Secondly, we find that the ... [Read more]

... le for claiming refund of the service tax paid on the commission paid to the commission agents @10% of the FOB value for the entire period i.e October to December, 2008 or whether the Revenue is correct in granting refund to the appellant @2% of the FOB value for the period October 2008 to 06/12/2008 and subsequently @10% of the FOB value as provided in Notification no. 33/2008-ST – HELD - On a perusal of Notification no. 33/2008-ST we find that the said notification does not indicate that the words ‘ten percent' shall be effective in the Notification 41/2007-ST from the date when it was issued. Secondly, we find that the benefit which has been sought to be given to the appellant is in respect of the exports which were made prior to the Notification came into existence, which in the case in hand, were eligible as per notification 41/2007-ST. In our considered view, the benefit of Notification no. 33/2008 can be claimed by the appellant from 07/12/2008 which is not in dispute as the Revenue has granted the said benefit to the appellant - Benefit of Notification no. 41/2007-ST was already in existence and was granted to the appellant and benefit of Notification 33/2008 was also granted to the appellant as on the date when it was enacted - Impugned order of the first appellate authority is correct and legal and does not require interference – Appeal dismissed [Read less]

2015-VIL-133-KAR-ST|SERVICE TAX |High Court Cases | 24.03.2015

... o refund the service tax deposited by the appellant, the same has not been refunded by the respondent – authority, even though the stay application filed by the respondent along with the appeal challenging the order of refunding the amount to the appellant has been dismissed – HELD - If the contention of the revenue is accepted that since the appeal is pending before the Tribunal the refund should not be directed, then it is not understood that why at all the respondent had filed an application for grant of stay before the Tribunal - The respondent was fully aware that it was liable to refund the service tax deposited by t... [Read more]

... o refund the service tax deposited by the appellant, the same has not been refunded by the respondent – authority, even though the stay application filed by the respondent along with the appeal challenging the order of refunding the amount to the appellant has been dismissed – HELD - If the contention of the revenue is accepted that since the appeal is pending before the Tribunal the refund should not be directed, then it is not understood that why at all the respondent had filed an application for grant of stay before the Tribunal - The respondent was fully aware that it was liable to refund the service tax deposited by the appellant in terms of the order dated 28.12.2011 and for that reason it had filed the stay application and once the stay application had been rejected, the order dated 28.12.2011 ought to have been implemented, as it is a fact that the order dated 10.9.2012 rejecting the stay application had become final. In such view of the matter, though the observations of the learned Single Judge that the respondent would be liable to pay interest @ 12% p.a. may not be interfered with but, in our view, the writ Court ought to have allowed the writ petition and directed refund of the service tax deposited by the petitioner/appellant - Appeal as well as the writ petition are allowed and direct that the order of refund be implemented [Read less]

2015-VIL-150-CESTAT-MUM-CE|CENTRAL EXCISE |CESTAT Cases | 24.03.2015

... mand of differential duty on the ground appellant had collected additional amounts from the buyers which were shown in the invoices as ‘other charges’, over and above the selling price towards handling, transportation or facilitation. On such additional amounts recovered, the appellant had not discharged any excise duty liability – Interest – Penalty - HELD - In respect of goods sold and delivered at ONGC, Nhava Depot, the said place should be taken as the 'place of removal' and the cost of transportation from the refineries to the 'place of removal' should be included for determination of assessable value – Additional amo... [Read more]

... mand of differential duty on the ground appellant had collected additional amounts from the buyers which were shown in the invoices as ‘other charges’, over and above the selling price towards handling, transportation or facilitation. On such additional amounts recovered, the appellant had not discharged any excise duty liability – Interest – Penalty - HELD - In respect of goods sold and delivered at ONGC, Nhava Depot, the said place should be taken as the 'place of removal' and the cost of transportation from the refineries to the 'place of removal' should be included for determination of assessable value – Additional amount collected from customers were meant to recover the additional cost that the appellant was incurring in transporting the goods from warehouse to depot, storing the goods in the depot and for the investment made in the storage tanks and pipelines upto the jetties - Such charges are includible in Transaction value as ONGC, Nhava Depot is the place of removal – Limitation - The fact that the appellant was collecting extra amount in the invoices issued from the depot was clearly suppressed from the Revenue and this is a very important aspect. Since there was suppression of the actual sale price from the Revenue, the ingredients of proviso to Section 11A are satisfied and, therefore, extended period of time is invokable. Similarly, penalty under Section 11AC is also leviable as there is a clear cut suppression of facts which are very material in determining the assessable value - Assessee appeal dismissed by Majority [Read less]

2015-VIL-134-DEL-CE|CENTRAL EXCISE |High Court Cases | 24.03.2015

... tation - Appellant had paid excise duty during the period between 22.2.1999 and 28.8.1999. The amounts were deposited towards excise duty payable. The adjudication order for the relevant period was made on 23.6.2004 pursuant to a show cause notice. Thereafter, the assessee-appellant applied for refund of the amount deposited - It was contended that the amounts had been paid under protest and under directions of the audit party – HELD - The assessee/appellant’s contention is that the amount deposited in February and August, 1999 were really by way of protest since they were pursuant to a demand and under the directions of t... [Read more]

... tation - Appellant had paid excise duty during the period between 22.2.1999 and 28.8.1999. The amounts were deposited towards excise duty payable. The adjudication order for the relevant period was made on 23.6.2004 pursuant to a show cause notice. Thereafter, the assessee-appellant applied for refund of the amount deposited - It was contended that the amounts had been paid under protest and under directions of the audit party – HELD - The assessee/appellant’s contention is that the amount deposited in February and August, 1999 were really by way of protest since they were pursuant to a demand and under the directions of the excise authorities. As to whether this was really so in the facts of the case was in fact determined by the Commissioner (Appeals). The occasion for the Commissioner (Appeals) to go into the matter was because the Assistant Commissioner did not consider it necessary to address the question whether the refund application was made within time. It was apparently assumed that the show cause notice culminated in the Order in Original and the refund application was made within six months if it were to be reckoned from that date. In a sense, there was an assumption that the application was within the stipulated time and that the second proviso did not come into play. On appeal, however, the Commissioner went into the materials and rendered the finding of fact. That finding of fact has not been upset by the CESTAT. The appellant’s attempt to have that order rectified in miscellaneous proceedings too was unsuccessful - In these circumstances, this Court is of the opinion that in fact no question of law arises in the facts of this case. What the appellant is urging this Court to dwell deep into the factual material and render findings of fact. We are clear that the jurisdiction of this Court does not permit such an enquiry - The appeal has no merit; the same is accordingly dismissed [Read less]

2015-VIL-135-ORI|VAT |High Court Cases | 24.03.2015

... thority has jurisdiction to make audit assessment under Section 42 of the OVAT Act after completion of the assessment under Section 43 of the said Act for the self-same tax period – HELD - Section 43 cannot be read into Section 42 by the State when the Legislature in its wisdom excluded Section 43 from the provisions of Section 42 of the OVAT Act. Consequentially, no assessment under Section 42 can be made after completion of the assessment under Section 43 for the self-same tax period - in case of an assessee, if the Revenue authorities decide not to exercise the power conferred under Section 41(2) of the OVAT Act read wi... [Read more]

... thority has jurisdiction to make audit assessment under Section 42 of the OVAT Act after completion of the assessment under Section 43 of the said Act for the self-same tax period – HELD - Section 43 cannot be read into Section 42 by the State when the Legislature in its wisdom excluded Section 43 from the provisions of Section 42 of the OVAT Act. Consequentially, no assessment under Section 42 can be made after completion of the assessment under Section 43 for the self-same tax period - in case of an assessee, if the Revenue authorities decide not to exercise the power conferred under Section 41(2) of the OVAT Act read with Rule 41(2) of the OVAT Rules to make audit assessment for particular tax period and choose to proceed to complete the assessment under Section 43 of the OAVT Act, it is thereafter not permissible to assess the petitioner under Section 42 of the OVAT Act - audit assessment under Section 42 cannot be made after completion of the assessment of escaped turnover under Section 43 of the OVAT Act read with Rule 50 of the OVAT Rules for the self-same tax period(s) – Writ petition allowed [Read less]