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Showing 261 to 280 of 1239 Records
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2012 (12) TMI 981 - HIGH COURT OF GUJARAT
Penalty u/s 271(1) (c) - Income revised in revised return filed after survey - Held that:- We are however of the opinion that in the impugned judgment of CIT v. Manu Engg. Works [1978 (9) TMI 18 - GUJARAT High Court ] , the Tribunal has committed no legal error. It was not a case where the assessee had discovered some inadvertent omission or an unintended wrong statement which had crept up in the return filed. It was found that the assessee was even at the time of filing of return aware of the falsity of the statement and incorrectness of particulars of income.
We are of the opinion that the Tribunal committed no error in confirming the penalty imposed by the Assessing Officer and confirmed by the CIT(appeals). Even if the assessee had made any further declarations in the revised return, we cannot lose sight of the fact that such return was filed only after the survey was carried out by the Revenue and further that such revised return was rejected as non-est.
It is not necessary for us to go into this aspect any further since we find that the Assessing Officer had come to a definite finding that the penalty was required to be imposed since the assessee had concealed the particulars of income. We therefore, need not disturb the Tribunal's ultimate conclusion merely for the fact that the Tribunal rejected the assessee's contention may be on some erroneous premise when we find that such contention even other-wise was not required to be accepted in law. - Decided against the assessee.
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2012 (12) TMI 980 - CHHATTISGARH HIGH COURT
Validity of Tribunal's order - whether the Tribunal was justified in allowing the appeal filed by the assessee and thereby, was justified in setting aside of the order passed by the Commissioner (Appeals) - Held that:- since the Tribunal did not advert to the factual aspects of the case in hand in detail and nor gave a clear cut finding of fact as to how and on what basis, the appellant was entitled to claim the benefit of Modvat on the inputs which according to assessee were produced by them and then, sent from one unit to another, in the light of relevant case law and principle of law, we are constrained to allow this appeal and set aside the impugned order passed by the Tribunal for deciding the appeal afresh on merits. The appeal is accordingly remanded to the Tribunal for its decision on merits - Decided in favour of Revenue.
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2012 (12) TMI 979 - GUJARAT HIGH COURT
Cenvat Credit - reasonable steps before availing credit - original manufacturer of fabrics were alleged to be fictitious - endorsed invoices - period of limitation - Held that:- Tax appeal is disposed on the same lines of the decision of this Court in case of Prayagraj Dying & Printing Mills Pvt. Ltd. & Ors. Vs. Union of India & ors (2013 (5) TMI 705 - GUJARAT HIGH COURT). - Decided in favour of assessee.
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2012 (12) TMI 978 - ITAT MUMBAI
Disallowance under section 40A(2)(b) - labour charges paid by the assessee to its vendor at Deesa - Held that:- Neither the assessee has provided any comparable rates to the revenue authorities nor the revenue authorities have made any attempt either by asking the assessee to provide for the comparable nor they suo moto collected any data from the market. What the revenue authorities have done is that they have relied on the internal comparable only to arrive at a figure of estimated charges per carat. In fact, the AO should have collected independent data or have asked the assessee to provide comparable periodic rates prevailing in the market at Deesa to set the bench mark. This exercise has not been done by the AO or by the CIT(A), which according to us, the revenue authorities should have done to arrive at some definite estimate.
In these circumstances, we are of the opinion that in the interest of justice to both the sides, the AO must make enquiries and examine the comparable rates from the third parties at Deesa and then benchmark the average job work rate for the financial year in question and compute the job work charges.We, therefore, set aside the order of the CIT(A) on the issue of addition of ₹ 43,97,624/- with the above direction to the AO, who shall afford adequate and reasonable opportunity to the assessee to present its case. - Decided in favour of assessee for statistical purposes.
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2012 (12) TMI 977 - GOVERNMENT OF INDIA
Denial of rebate claim - Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - applicant was clearing goods by availing exemption Notification No. 29/2004-C.E. and 30/2004-C.E. simultaneously - Held that:- Notification No. 30/2004-C.E., dated 9-7-2004 is a conditional notification. The proviso as at para 8 unambiguously states that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs had been taken under the provisions of Cenvat Credit Rules, 2004. The applicants had in fact taken Cenvat credit on inputs used in the manufacture of exported goods as declared on the ARE-1’s and had cleared the goods on payment of duty. When the condition of the notification was not satisfied, there was no way the applicants could have availed exemption under Notification No. 30/2004-C.E., dated 9-7-2004.
As such, the applicant though was having an alternative but has stated to have duly maintained the separate account for goods availing of Notification No. 29/2004-C.E. and goods availing of Notification No. 30/2004-C.E. Under such circumstances, Government finds that rejection of applicant’s rebate claim for the reasons stated above is not tenable. The applicant is claiming to have maintained proper Cenvat credit accounts for their clearances of exports after payment of duty which stands duly submitted to the jurisdictional Central Excise office. Applicant has claimed that they were availing actual Cenvat credit on the inputs which are to be used only for the goods to be cleared on payment of duty. This pleading has not been considered by lower authorities especially the certifications from the jurisdictional Superintendent of Central Excise, dated 13-5-2010.
Applicant exporter herein is eligible for rebate in the manner it was granted by the original rebate sanctioning authority subject to verification that applicant had complied with the procedure laid down in C.B.E. & C. Circular No. 795/28/2004-CX., dated 28-7-2004. - Government sets aside both the impugned Orders-in-Appeal and restores the impugned Order-in-Original No. 513/10-11, dated 5-7-2010 subject to condition that applicant had complied with the procedure laid down in C.B.E. & C. Circular No. 795/28/2004-CX., dated 28-7-2004. - Decided conditionally in favour of assessee.
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2012 (12) TMI 976 - CESTAT MUMBAI
Waiver of pre deposit - Denial of refund claim - CENVAT Credit - Notification No. 6/2006-C.E. - Held that:- In view of the provisions of the Notification No. 6/2006-C.E. as refund claims of the applicants are already rejected by the lower authorities therefore prima facie we find that the applicants are not entitled for the credit availed of the amount equal to the amount of duty paid in excess in view of the provisions of Notification No. 6/2006-C.E. - applicants directed to deposit 50% of the duty within eight weeks - Partial tay granted.
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2012 (12) TMI 975 - CHHATTISGARH HIGH COURT
Waiver of pre deposit - Opportunity of hearing not granted - Whether the Tribunal was justified in imposing the condition of deposit of ₹ 30 lakhs, in para 8 of impugned order, while allowing the assessee’s appeal and setting aside the order, passed by the Commissioner of Central Excise & Customs, Raipur (Adjudicating Authority), impugned in the said appeal - Held that:- having regard to the controversy involved in the case and the fact that the matter was remanded back to the adjudicating authority, there was apparently no justification on the part of the Tribunal to direct the appellant (assessee) to deposit a sum of ₹ 30 lakhs, in cash, with the adjudicating authority. It was not in dispute that adjudication order was yet to be passed and the matter was remanded only for the purpose of holding enquiry as to whether the assessee was liable to pay the amount demanded from them pursuant to the show cause notice issued by the adjudicating authority. - Let the adjudicating authority give opportunity to appellant (assessee) to file reply to show cause notice under consideration. The reply shall be filed by the appellant (assessee) within two weeks from the date of parties’ appearance before the adjudicating authority on a date fixed by this Court. The Adjudicating authority shall decide the case within three months from the date of filing of reply. No adjournment shall be granted to the appellant (assessee), in case, if they do not file reply to show cause notice within time fixed by this Court. - Decided in favour of assessee.
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2012 (12) TMI 974 - CESTAT NEW DELHI
Denial of CENVAT Credit - inputs and capital goods used for generation of power - whether the appellant would be eligible for Cenvat credit in respect of inputs and capital goods used in the captive power plant - Held that:- Renusagar Power Plant, which is a captive power plant of the appellant company, together with the cement factory of the appellant company constitute one integrated unit and it is not disputed that except of small quantity of electricity generated being used in the Renusagar township, the remaining quantity is used in the appellant’s factory for production of aluminium. Therefore, the Cenvat credit in respect of capital goods and inputs used in the captive power plant located at Renusagar cannot be denied just because the power plant is located at some distance from the factory.
Since, admittedly, some quantity of electricity generated is used in the township and is not used in the factory of the appellant company for manufacture of excisable goods, to that extent, the input duty credit would not be admissible in view of judgment of the Apex Court in the case of CCE v. Solaris Chemtech Ltd. [2007 (7) TMI 2 - SUPREME COURT OF INDIA]. However, for determining the quantum of input duty credit, which would be inadmissible on this ground, the matter would have to be remanded to the original Adjudicating Authority. - Decided in favour of assessee.
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2012 (12) TMI 973 - GOVERNMENT OF INDIA
Denial of rebate claim - Availment of CENVAT Credit - manufacturer exporter accepted the same as mistake and reversed the said availed credit - Held that:- Applicant Exporter as manufacturer was regularly submitting his Central Excise Returns and never suppressed anything, his pleas of above mistake as having been committed inadvertently needs to be considered and his subsequent reversal of that part of inadmissible Cenvat credit should be taken as compliance of applicable provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 read with Rule 18 of Central Excise Rules, 2004. Government therefore following the principle as adopted in M/s. Cot Fab Exports [2005 (11) TMI 100 - GOVERNMENT OF INDIA] is of the considered opinion that such a substantial benefit of rebate claim should not be denied once the Cenvat credit stands reversed. - Decided in favour of assessee.
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2012 (12) TMI 972 - GOVERNMENT OF INDIA
Denial of rebate claim - During the relevant time duty of said goods was nil as per Notification No. 29/2004-C.E., dated 9-7-2004 as amended vide Notification No. 58/2008-C.E., dated 7-12-2008 - applicant paid duty on the exempted goods - Held that:- As per explanation 1(A) to Section 5(A) of Central Excise Act, 1944 the manufacturer of such goods has no option to pay Central Excise duty since Notification No. 29/2004-C.E., dated 9-7-2004 as amended, issued under Section 5A(1A) of Central Excise Act, 1944 grants unconditional exemption from whole of duty. The duty paid cannot be treated as duty paid under the provision of Central Excise Law. As such, the rebate of said amount is not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 since exported goods cannot be treated as duty paid goods. - impugned order-in-appeal is upheld to this extent - amount so paid by the applicant is to be treated as voluntary deposit with Government and same is to be refunded in the manner it was initially paid. In the instant case the same was paid from Cenvat credit account and hence government directs that the said amount may be allowed to be re-credited in their Cenvat credit account. - Decided partly in favour of assessee.
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2012 (12) TMI 971 - GOVERNMENT OF INDIA
Denial of rebate claim - ARE-1 value was higher than FOB value declared on Shipping Bills - Held that:- Rule 6 is applicable where the ‘price is the sole consideration’. But, in the instant case the applicant received free of cost material, processed them and manufactured the final export product exported the same. While exporting the final export material, they declared conversion charges of converting free of cost material into final export product which they were actually going to realize. The applicant was neither going to realize total cost of final export goods nor the total amount declared in AREs-1 which include value of free material received from foreign party plus cost of conversion. Under such circumstances, if at all there is any amount which is considered of sole consideration, would be cost of conversion and not anything else. The FOB value declared in Shipping Bills which is equivalent to cost of conversion is the transaction value in this case which is realized toward export sale proceeds - The original authority has rightly held that transaction value in this impugned case is FOB value declared in Shipping Bills and rebate of duty payable on said value is required to be sanctioned. Any excess duty paid is required to be refunded in the manner it was paid - Decided in favour of assessee.
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2012 (12) TMI 970 - GOVERNMENT OF INDIA
Imposition of penalty - Theft of goods - Clandestine removal of goods - Applicability of Rule 4 - Held that:- Fact of looting/robbery, which also led to murder of security guard of applicant’s factory premise, has not been disputed. As such, the applicant was a victim of theft incident. Under such circumstances, provisions of Rule (4) of the said rules cannot be applied as the applicant, a manufacturer, has not removed the goods unauthorisedly. Further, there is no specific allegation in Show Cause Notice or impugned orders that the goods were removed by the applicant in unauthorised manner from their factory premises. Theft has occurred in spite of taking all possible preventing measures by the applicant. - this is not a case where the applicant has applied for remission of duty under Rule 21 of the Central Excise Rules, 2002. Applicant has already deposited the demand amount of ₹ 49,147/-. In view of this position there is no case for imposition of penalty since there is no clandestine removal of goods by the applicant. As such, Government sets aside the penalty imposed on the applicant - Decided in favour of assessee.
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2012 (12) TMI 969 - GOVERNMENT OF INDIA
Confiscation of goods - Commercial quantity goods - baggage declaration not present - Held that:- Applicant passenger, on arrival at the airport had reported at the red channel. There is no charge of misdeclaration or concealment of said goods. The goods are confiscated as the same were in commercial quantity and did not constitute bona fide baggage - Applicant has also requested to allow duty free baggage allowance as per rules. In this regards, it is noted that the woollen textiles valuing ₹ 30,000/- cannot be treated in commercial quantity and its value is also well within admissible duty free baggage allowance. Therefore, said textiles valuing ₹ 30,000/- may be allowed clearance under duty free baggage allowance available under the Baggage Rules. The other items are in commercial quantity and do not constitute bona fide baggage under Section 79 of Customs Act, 1962 and said goods are imported in violation of Sections 79 & 11 of Customs Act, 1962 r/w para 2.20 of FTP 2009-14. Therefore the order for confiscation of said goods and imposition of penalty cannot be assailed. - applicant has not sought re-export of goods on his arrival, under Section 80 of Customs Act, 1962. He has deliberately attempted to import the said goods illegally and therefore his request for re-export cannot be accepted at this stage - allows clearance of woollen textiles valuing ₹ 30,000/- is allowed under duty free baggage allowance - Decided partly in favour of assessee.
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2012 (12) TMI 968 - GOVERNMENT OF INDIA
Denial of rebate claim - applicant exported the goods after more than 2 years from the date on which the goods were cleared from factory - failure to obtain the extension from Jurisdictional Commissioner - Held that:- applicant initially exported the goods covered vide 8 AR4/ARE’s of year pertaining to 1998 and 2000 under bond without payment of duty. However, they failed to export the goods within stipulated time/extended time and paid duty applicable on such goods vide TR-6 challan dated 22-6-2000 and also vide entry in RG 23 Pt. II dated 22-6-2000. Subsequently, in 2003, after receiving fresh export orders, they cleared the goods. The applicant filed rebate claim of duty paid by them vide abovesaid TR-6 challan and entry in RG 23 Pt. II, both dated 22-6-2000. Government finds that the said duty was paid by the applicant for the reasons of failure to export the goods under Bond. It cannot be claimed as rebate under Rule 18 of Central Excise Rules, 2002. However, applicant exported the goods subsequently and is claiming rebate.
Goods are exported after lapse of 6 months period from the date of clearance of goods for export from factory. Applicant has not produced any valid permission from the competent authority to export said goods after 6 months. The applicant has violated the provisions of Condition 2(b) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and failed to make compliance of said mandatory condition. Therefore, the rebate claim is not admissible to the applicants under Rule 18 of Central Excise Rules, 2002 r/w Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided against assessee.
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2012 (12) TMI 967 - GOVERNMENT OF INDIA
Denial of rebate claim - benefit of exemption under Notification No. 56/2002-C.E., dated 14-11-2002 - Interest on delayed refund claim - Held that:- Rule 18 of Central Excise Rules, 2002 was amended retrospectively w.e.f. 1-3-2002 to 7-12-2006 vide Section 88 of Finance Act, 2008 allowing rebate of duty paid on excisable exported goods for that portion of duty for which refund has been granted in terms of area based exemption notification to the manufacturer. The said amendment in Rule 18, make such rebate claims admissible during the period 1-3-2002 to 7-12-2006. Government observes that the retrospective validation of admissibility of rebate claims, made the claimant entitled for said rebate claim during the relevant period. The said amendment has not put any bar on payment of interest in terms of Section 11BB for delayed payment of said refund claims. So the time limit provided under Section 11BB for the purpose of computing interest liability has to be adhered to. Interest liability arises when any duty ordered to be refunded under Section 11B(2) is not refunded within three months from the date of receipt of application under Section 11B(1). Since the said amendment has not put any restriction on the payment of interest in terms of Section 11BB, the argument of department that interest will arise after three months of amendment, does not hold good. - interest under Section 11BB becomes payable on the expiry of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and any explanation/reasons due to which the delay occurred, will not have any bearing upon the said legal position. Therefore, Government finds no infirmity in the impugned order-in-appeal and upholds the same. - Decided against Revenue.
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2012 (12) TMI 966 - ITAT MUMBAI
Reopening of assessment - accommodation entries - Held that:- The assessee has discharged his onus by filing complete details ie. purchase of shares, share certificate, Demat account, confirmation from Buniyad Chemicals Limited of whose shares were purchased. Consideration was paid through account payee cheque, therefore, there is no material against the assessee from which it can be said that the transaction entered by the assessee was not genuine. It is further noticed that in case of Kataria Ketan Ishwarlal (2010 (4) TMI 1029 - ITAT MUMBAI), the additions were made on the basis of statement of Shri Mukesh Chokshi. The Tribunal by noting that Mr. Chokshi has issued a general statement and it cannot be applied in each and every case, there was no direct evidence against that assessee. Accordingly, the amount of addition made in that case was deleted by the Tribunal. Here facts are similar. Neither the statement of Mukesh Chokshi was provided to the assessee nor there was any cross examination of Mukesh Chokshi, whereas contrary to that the assessee has filed all the details required for providing for purchase of shares were genuine. It is not a case of the department, whatever the consideration was paid by the assessee through cheque for purchasing of shares have come back to the assessee under the garb of bogus purchases as there is no evidence against the assessee. Keeping in mind all these facts and circumstances of the case, thus hold that the addition made and sustained on account of purchase of shares only on the basis of statement of Mukesh Chokshi, was not justified - Decided in favour of assessee.
Unaccounted gift - unexplained credit - Held that:- admit the additional evidence as they go to the root of the case. The additional evidences are in shape of gift given to the assessee by one Ms Fareeda Manasswala. Copy of her passport and confirmation letter are filed as additional evidences. They were not filed before the AO or before the CIT(A). Therefore, to meet the end of justice, I set aside this issue to the file of the Assessing Officer to consider these evidences and then pass a fresh order after affording opportunity of being heard to the assessee - Decided in favour of assessee for statistical purposes..
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2012 (12) TMI 965 - SUPREME COURT
Cheating - Swindling of amount - Non following of procedure by magistrate - Section 202 of the Code of Criminal Procedure - Held that:- High Court took the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance or process under Section 418 of 420 of the I.P.C. Further, it was held that the C.J.M. did not follow the procedure laid down under Section 202 of the Cr.P.C. - The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further.
Amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of the Cr.P.C. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 of the I.P.C. - Matter remanded back - Decided in favour of Appellant.
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2012 (12) TMI 964 - BOMBAY HIGH COURT
Stay of order - exemption denied in respect of sales/ supply of HSD made to fishermen society on the ground that the societies were not holding a licence under the Act - Held that:- Prima facie it appears that the remedy under section 7A(2) of the Act would be available against the fishermen's societies for the breach, if any. The Tribunal itself records in its order dated August 28, 2012 that the issue arising before them is debatable. Further,find that the petitioner for the year 1989-90 had paid an amount of ₹ 8.73 crores as tax under the Act. In light of the above the disputed amount of ₹ 30.80 lacs is relatively a amount and the stay could be granted without any condition of part payment. Matter to be concluded expeditiously.
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2012 (12) TMI 963 - MADHYA PRADESH HIGH COURT
Entry tax on raw material, i.e., glass shell, glass panel, glass funnel and neck tube at the rate of one per cent - whether be treated to be covered by entry 49 of Schedule II of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 ? - levy of interest under section 13 of the Entry Tax Act read with section 26(4)(a) of the Vanijya Kar Adhiniyam, 1994
Held that:- Keeping in view the language employed in the respective entry and the undisputed fact that the items in question are made of glass and that they are not parts or accessories of television but are used as raw material for manufacturing of parts and accessories of television, we are of the view that the items in question are covered by entry 42 of Schedule II to the Entry Tax Act.
Under the said provision, the interest has been levied on delay in payment of tax. Since a submission has been made that the said interest is relatable to the difference on the rate of tax claimed by the petitioner under entry 42 of the Entry Tax Act and rate of tax levied by the assessing authority under entry 49 of the Entry Tax Act, and since this court has held that entry 42 is applicable, therefore, the interest levied by the assessing authority to that extent cannot be upheld. W.P. allowed - matter is remitted back to the assessing authority for fresh assessment
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2012 (12) TMI 962 - GAUHATI HIGH COURT
Refund of the excess amount paid to the Sales Tax Department, Government of Assam - Held that:- Raw petroleum coke and calcined petroleum coke have been treated to be a part of one entry "coke in all its forms". The principle that different commercial commodities attract separate tax was distinguishable.
In view of the judgment of the honourable Supreme Court 1994 in State of Bihar v. Universal Hydrocarbons Co. Ltd. [(8) TMI 248 - SUPREME COURT OF INDIA] in respect of same commodity, it is not necessary to go into the general principle whether different commercial commodities will attract separate tax as laid down in the judgment of the honourable Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra [1976 (1) TMI 151 - SUPREME COURT OF INDIA] which was held to be distinguishable in its applicability to the entry of "coke in all its forms".Set aside the impugned order and direct that a fresh decision be taken in the matter,
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