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Showing 501 to 520 of 1429 Records
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2014 (2) TMI 930 - ITAT CHENNAI
Bad debts written off u/s 36(1)(vii) of the Act- Held that:- After the amendment of section 36(1)(vii) of the Income Tax Act, 1961 with effect from 1st April, 1989, it is not necessary for the assessee to establish that the debt - It is enough if the bad debt is written off as irrecoverable in the accounts of the assessee – the matter remitted back to the AO for fresh adjudication – Decided in favour of Assessee.
Rejection of P&L account – Provisions of section 115JB of the Act not complied – Held that:- The decision in assessee’s own case for the previous year followed – Held that:- In view of amendment to the provisions of section 115JB by the Finance Act, 2012, the provisions of section 115JB are applicable to the banks as well from assessment year 2013-14 – Decided in favour of Assessee.
Restriction in claim of deduction u/s 36(1)(viia) of the Act – Held that:- There was no application of mind by the Assessing Officer at the time of assessment - Assessing Officer had not come to any conclusion at all having not considered the claim in the light of the conditions set out in Section 36(1)(viia) of the Act - there was no enquiry made during the course of assessment proceedings - the order which was silent on the claim made by the assessee, and allowing such claim, without any discussion, will definitely render it erroneous and prejudicial to the interests of Revenue - An order without application of mind is definitely prejudicial to the interests of the revenue – the order of the CIT(A) upheld – Decided against Assessee.
Disallowance u/s 43B of the Act - Claim of leave encashment – Held that:- The decision in Calcutta Co. Ltd. v. CIT [1959 (5) TMI 3 - SUPREME Court] relied upon – The provision made by the appellant-company for meeting the liability incurred by it under the leave encashment scheme proportionate with the entitlement earned by employees of the company, inclusive of the officers and the staff, subject to the ceiling on accumulation as applicable on the relevant date, is entitled to deduction out of the gross receipts for the accounting year during which the provision is made for the liability - The liability is not a contingent liability – Decided in favour of Assessee.
Charging of Tax – Surplus arising on account of takeover – Held that:- The facts that the assessee has been treating the shares of Bharat Overseas Bank Ltd. as stock-in-trade has not been rebutted by the AR - The assessee bank has been offering profit on sale of shares as business income - The cancellation of stock-in-trade which has resulted in gain to the assessee is thus a business income – there is no infirmity in the order of the CIT(A) – Decided against Assessee.
Claim of depreciation on UPS at 80% - Held that:- The contention of the assessee that the UPS is an energy saving device, therefore, depreciation @ 80% should be granted cannot be accepted – the decision in COMMISSIONER OF INCOME TAX Versus ORIENT CERAMICS & INDS. LTD [2011 (1) TMI 26 - DELHI HIGH COURT ] followed - depreciation @ 60% granted by treating UPS as part of computer hardware – Decided partly in favour of Assessee.
Claim of double taxation relief of foreign branches – Held that:- The decision in assessee’s own case for earlier year is followed - The Assessing Officer in accordance with the directions given by the ITAT enquired all the provisions of the DTAA between India and Thailand and as per Article 23(3) by following the tax credit method whatever tax was paid by the assessee in Thailand was given credit to the assessee - The CIT(A) hyper technically held that the only job of the Assessing Officer was to see whether there is a DTAA between India and Thailand - The Tribunal clearly directed the Assessing Officer to enquire into the existence of a DTAA between India and Bangkok – the order of the CIT(A) upheld – Decided in favour of Revenue.
Deletion of disallowance of contribution towards staff welfare fund – Held that:- The decision in assessee’s own case for the previous year followed - the assessee has not been able to show that the liability has been crystallized or the contribution has been made towards approved fund as per the provisions of the Act - The claim of the assessee based upon the provision of section 43B has no merit - Before the provisions of section 43B can be applicable, deduction must otherwise be allowable under the Act - the contribution towards staff welfare fund is not allowable expenditure – the order of the CIT(A) set aside - Decided in favour of Revenue.
Depreciation on fixed assets taken over – Held that:- the diminution in the value of the securities held by the bank should be allowed as deduction disregarding the method prescribed in the Reserve Bank of India as per which ‘permanent’ investments had to be valued only at cost and only ‘current ’investments were to be valued at market price at the close of the accounting year” – Decided against Revenue.
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2014 (2) TMI 929 - BOMBAY HIGH COURT
Contravention of the provisions of section 13 of the Foreign Exchange Management Act, 1999 (FEMA) - The petitioner seeks an order directing the respondents to supply all the documents referred to in a complaint dated 13.07.2011 and not annexed to the complaint and the show cause notice and an order quashing a letter dated 04.06.2013 by which the respondents refused to furnish the documents to the petitioner. - Held that:- the petitioner is entitled to be furnished the documents referred to in paragraph 3(k) of the letter dated 22.08.2011.
The respondents shall be entitled to either issue a fresh show cause notice and proceed afresh on the basis thereof in accordance with law or to furnish the documents in paragraph 3 of the letter dated 22.08.2011 and thereafter form an opinion afresh under rule 4 after affording the petitioner a fresh opportunity to show cause as contemplated under Rule 4. On Mr.Setalvad's application, the operation of this judgment and order is stayed for a period of six weeks, in view of his statement that in the meantime the Special Director, Directorate of Enforcement will not proceed with the hearing pursuant to the impugned notices. This stay will not however, prevent the respondents from proceeding with the matter in accordance with this judgment.
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2014 (2) TMI 928 - CESTAT CHENNAI
Waiver of pre deposit - Clearance of goods without payment of duty and filing bills of entry - Mis declaration of goods - Held that:- prima facie the first three appellants have clearly played active roles in smuggling the cargo without payment of duty from the Air Cargo Complex. Shri P. Ganesh, prima facie is the owner of the goods. Shri M. Ramesh was an employee of a cargo holder of a CHA, had access to the customs area and actively participated in the smuggling. Shri A.Saravanan was aware of the smuggling and he provided information to Shri M. Ramesh for identifying the cargo. All the three played major roles in the manner suggested above. In the case of International Airport Authority, no awareness at an organization level is prima facie brought out - Conditional stay granted.
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2014 (2) TMI 927 - CESTAT MUMBAI
Penalties under Regulation 12 (8) of the Handling of Cargo in Custom Area Regulation, 2009 and Section 158(3) of the Customs Act, 1962 and penalties on the co-appellant of ₹ 1 lakh each under Section 117 - Held that:- assessee failed to produce the copy of application for registration. Moreover, in the Registration certificate survey no. 117 was not entertained, therefore although the appellant may have applied for Survey no. 117 but without they have been granted to operate from works from Survey no. 117, the appellant is not entitled to operate from Survey no. 117. In these circumstances, I do not find any infirmity with the impugned order. Further, penalty on the appellant are highly excessive, therefore, the same is reduced to 50% in the case of M/s. Ashte Logistics P. Ltd. - Decided partly in favour of assessee.
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2014 (2) TMI 926 - CESTAT CHENNAI
Extension of stay beyond 180 days or 365 days - operation of the orders expired in terms of the 2nd and 3rd pvosisos to Section 35C(2A) of the Central Excise Act, 1944 – Held that:- An order of waiver of pre-deposit granted under provisions of Section 35F does not, either expressly or by any compelling implication, have a legislatively enjoined sunset period. Waiver of predeposit granted always operates during pendency of the appeal. Pre-deposit is a threshold requirement for triggering the substantive jurisdiction of the Tribunal. – Decision in the case of R. Ariyappan and M/s. OPG Metals Pvt. Ltd. and others Versus Commissioner of Central Excise & Service Tax, Tiruchirapalli [2013 (12) TMI 457 - CESTAT CHENNAI] followed
Pendency of the appeals are not on account of any conduct of the appellants but on account of pendency of a large number of older appeals and a critical supply/demand mismatch in the Tribunal - it is appropriate to grant extension of the stay orders earlier granted, to operate during the pendency of the appeals – Decided in favour of Assessee.
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2014 (2) TMI 925 - CESTAT NEW DELHI
Classification of goods - whether the goods imported are classifiable as ‘other multiple folded or cabled artificial yarn’ under sub-heading no.54034990 of the Tariff or as ‘chenille yarn’ under sub-heading no.56060090 - Held that:- whether the yarn, in question, is chenille yarn covered by heading 5606 of Chapter 56 of HSN or is polyester filament yarn covered by heading no.5403 of the HSN has to be decided by testing. In this regard while NITRA in its report has categorically stated that the yarn, in question, is not chenille yarn, and on the basis of this report classification under Heading no.5606 (sub-heading 56060090) is ruled-out, the report of the CRCL is inclusive as it is silent as to whether the characteristics of the yarn, in question, are those of chenille yarn and it does not give any conclusion.
We do not accept the Revenue’s plea that preference should be given to the report of Textile Committee or CRCL as compared to the report of NITRA. Therefore, it is the report of NITRA, which would have to be relied. If the adjudicating authority had doubts about the correctness of the report of NITRA, he could have called the chemical examiner of NITRA for cross examination for ascertaining as to which testing method has been adopted and what is the basis for his conclusion, but his has not been done - Decided against Revenue.
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2014 (2) TMI 924 - DELHI HIGH COURT
Winding up of company - Inability to pay debts - Respondent has failed and neglected to pay the invoices raised by the petitioner for the goods supplied by the petitioner to the respondent - Held that:- in the present case there was no corresponding credit note issued by the petitioner and therefore the debit note which has been issued by the respondent could not be stated to have been accepted. It is common accounting knowledge that a debit note only represents a debit entry made by a party in the account of another party maintained in its books of account. In other words a party who decides to debit an account of another party would issue a debit note to enable the other party to pass a corresponding entry in its books. Similarly a credit note is issued if the account of the other party is credited. Both credit notes and debit notes are primary vouchers representing entries in the books of accounts. A unilateral issue of debit note would, obviously, not by itself extinguish a debt. However, a debit note would indicate that the party issuing the debit note has debited the account of the other party in its books. The debit note issued in the present case represents a claim that had been made by the respondent on account of alleged defective goods. It is not disputed that it is a contemporaneous document, which had been issued much prior to the filing of the present petition or the issuance of notice under Section 433(1)(a) - Decided against Petitioner.
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2014 (2) TMI 923 - CESTAT KOLKATA
Waiver of pre-deposit - Valuation - Manufacture of wagons for Indian Railways - Inclusion of Free supplies - Rule 6 of valuation Rules - Held that:- It is difficult to appreciate that M/s. Burn Standard Company, who are engaged in the manufacture of railway wagons, could not appreciate the new provisions prescribed under Section 4 of the CEA, 1944 and the Rules made thereunder, introduced from 01.07.2000. On a query from the Bench, whether the Applicant had approached the Department for any clarification regarding the includibility of the value of free issue materials in the assessable value of wagons, after introduction of the Transaction Value regime, the ld. Advocate expressed his inability to answer the same, as nothing is borne out from the record available with him. - Applicant could not able to make out a prima-facie case for total waiver of predeposit of the dues adjudged. - Stay granted partly.
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2014 (2) TMI 922 - CESTAT MUMBAI
100% EOU - Demand of SAD on account of clearance to other units located in DTA by way of stock transfer - Benefit of exemption from levy of SAD leviable under Section 3(3) of the Customs Tariff Act 1975 - Interest u/s 11AB - Held that:- it is admitted position that the goods are not exempted from the Sales tax in the DTA to which they have been cleared from EOU unit of the appellant. Thus, we hold that the appellant is entitled to the benefit of exemption from levy of SAD leviable under Section 3(3) of the Customs Tariff Act 1975 in view of the specific exemption granted under Notification NO. 23/2003-CE, as amended - Decided in favour of assessee.
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2014 (2) TMI 921 - CESTAT MUMBAI
Valuation of goods - Whether one normal price will have to be worked out for all depots or different normal prices for different depots may be accepted for assessment purposes - Held that:- From the instructions issued by the Board in 1996 and 2000, it is absolutely clear that when the goods are sold not at the factory but form a depot, the value to be taken is the value prevalent at the depot at the time of removal and if the value is not available at the time of removal, at the nearest point of time. The Board Circular also clarifies that when the goods are sold from different depots what is to be taken is only the value at a particular depot from where the goods are ultimately going to be sold and not the values prevalent at other depots.
It is abundantly clear that except for the change that "normal value" is replaced by "transaction value" there is no material difference in the method of valuation under the old section 4 and new section4 and also the valuation Rules made thereunder. The new section 4 introduced form 01/07/2000 envisages that the value has to be determined for each removal of excisable goods. In other words, the new Section 4 envisages the possibility of the goods being sold at different values to different places and to different customers and each of such values were acceptable for the purpose of assessment of duty, so long as the other conditions prescribed therein are satisfied.
On a given day, then there would be only one value irrespective of the fact that the goods are removed from different refineries and sold from different different depots. Such an interpretation of law, in our view defeats the purpose and object of new Section 4 which to levy excise duty on transaction value for each removal. Further Rule 7 of the Valuation Rules, 2000 also envisages that where the goods are sold by the assessee at the time and place of removal but are transferred to depot/other premises from where the excisable goods are to be sold after their clearance from the place of removal and where the assessee and buyer of the goods are not related and price is the sole consideration for sale, then the value shall be the normal transaction value such goods sold from such other place at or about the same time, and where such goods are not sold at or about some time at the time nearest to the time of removal of goods assessment. The expressions of "such goods" and "such other place" are significant "such goods" refers to goods of the same kind and quality and such other place means the place from which the goods would be ultimately sold on removal from the factory.
if the goods are to be sold after removal from the factory at Mumbai through the depot at Ahmedabad, it is the price prevailing at Ahmedabad at that particular time which would be relevant for the purpose of determination of assessable value for the goods cleared at Mumbai factory at a given date. If we take the value of the aggregate quantity of goods from all the depots throughout the country, the expression "such other place" loses its meaning and significance. It is a settled position of law that while interpreting no word should be rendered redundant or surplus. If the view taken by the adjudicating authority is accepted, it would result in an absurd situation as it would render the word "such goods" and "such other places" redundant - Following decision of Brakes India Ltd. vs. CCE, Chennai [2005 (1) TMI 211 - CESTAT, CHENNAI] - Decided in favour of assessee.
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2014 (2) TMI 920 - CESTAT CHENNAI
Denial of Cenvat credit – ISD - Services can be treated as ‘input services' under Rule 2(l) of CENVAT Credit Rules, 2004 OR not - Nexus between services rendered in Corporate Office and RDCs with the manufacturing activity - Waiver of Pre-deposit – Held that:- The services were rendered at the applicant's Corporate Office as Regional Distribution Centers (RDC) - Merely because the input service tax is paid at a particular unit and the benefit is sought to be availed at another unit, the same is not prohibited under law - The contention of the ineligibility of credit on the input service credit on transportation from depot to retail outlets by the revenue holds ground - Following decision of asessee's own previous case [2013 (12) TMI 923 - CESTAT CHENNAI], stay was granted on all the items of services except in respect of tax relating to ‘transportation of goods’ from RDCs to retail outlets. - Conditional stay granted.
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2014 (2) TMI 919 - CESTAT MUMBAI
Rectification of mistake - while the show cause notice proposes to deny CENVAT credit on the ground that the invoices were issued in the name of the head office whereas the credit is taken at the factory - Held that:- The order does not propose anything which is not sanctioned by the statute. Credit can be availed on receipt of services and services so received are utilized in relation to the manufacture of final products. The order merely makes obvious this position. Therefore, I do not find any mistake in the impugned order - Decided against assessee.
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2014 (2) TMI 918 - CESTAT NEW DELHI
Rectification of mistake - Tribunal in the said order has observed that waste and scrap sold by the appellant has arisen out of capital goods on which no credit was availed by them and as such, there was no requirement of payment of any duty on the said waste and scrap - Held that:- Revenue in the present application has introduced a letter dated 14-6-2006 written by the Superintendent (Demand) to Superintendent (Review) wherein the list of all the capital goods/inputs on which the appellant has taken the credit stand enclosed. We note that show cause notice in the present case was issued on 24-4-2002 and the Order-in-Original was passed on 13-1-2004. Thereafter the Order-in-Appeal was also passed on 26-5-2005. As such, it is clear that the said letter dated 14-6-2006, which is now being sought to be relied upon by the Revenue, was never the part of either the show cause notice or the adjudication order or the first appellate authority’s order. Further, the said letter was not produced before the Tribunal at the time of disposal of the appeal. As such, the Revenue’s endeavour to introduce the said letter in the records of the present case cannot be appreciated. Further, when the said letter was not placed before the Tribunal and accordingly was not considered, it cannot be said that there is any mistake on the part of the Tribunal requesting rectification of final order - Decided against revenue.
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2014 (2) TMI 917 - CESTAT AHMEDABAD
Rectification - Corrigendum replacing the entire findings - Held that:- adjudicating authority becomes functus officio, as soon as he passes the Order-in-Original and corrigendum, if any, at the most can be for correcting the factual errors. It is an admitted fact by both sides that the corrigendum issued by the Commissioner of Central Excise, Surat-I has replaced the entire findings of the Order-in-Original Nos. 31-35/demand/2012, it is so; the same seems to be inconsistent with law - At the same time to meet ends of justice; as requested by both sides, we direct the adjudicating authority to reconsider the issue afresh after following the principle of natural justice - Decided in favour of assessee.
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2014 (2) TMI 916 - CESTAT MUMBAI
100% EOU - Clearance of non-duty paid goods to DTA - Extended period of limitation - Imposition of interest and penalty - Appellants were working under Notification 1/95-CE dated 1.4.1995 and procuring the raw material without payment of duty on the condition that the same is used in the manufacture of goods exported - Held that:- statutory records maintained by the appellants show the use of the raw material procured without payment of duty for intended use. However, the detailed investigation was conducted from various transporters as well as buyers, which shows that in fact the raw material which was procured without payment of duty was cleared clandestinely to DTA. The documents prepared by the appellants were found to be fake and ultimately in the year 2006, the evidence collected was put to the proprietors and they admitted the clandestine clearance of the goods without payment of duty and thereafter the show cause notices were issued within five years hence the ratio of the above decisions relied upon by the Revenue are fully applicable on the facts of the present case. As the appellants are not disputing the demands on merits before the adjudicating authority nor in the present appeals, therefore we find no merit in the contention of the appellants that the demands are time barred - Decided against assessee.
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2014 (2) TMI 915 - CESTAT NEW DELHI
Waiver of pre-deposit - Denial of benefit of CENVAT credit of additional customs duty - Disallowance of on the ground of violation of condition of Notification No. 32/2005-Cus., dated 8-4-2005 regarding installation of capital goods - The lower authorities have denied the CENVAT credit on the ground that there was no extension of periods granted by the appropriate officer for installation of the capital goods - Held that:- violation, if at all, is of Notification issued under the Customs Act, relatable to the import of the capital goods. As such, denial of CENVAT credit by the Excise authorities on the said ground is not appropriate. We are informed by the ld. Advocate that no action stands taken by the Commissioner alleging any violation and the consequent denial of the benefit of the Customs notification.
Certificate showing installation of the capital goods in the appellant factory stands given by the Central Excise authority on 28-9-2008. Even if there is no express extension of the period of 6 months, grant of such certificate within the extended period reflects upon the deemed extension - drawback also stands availed by the importer. It is only a doubt expressed by them and we are of the view that such doubt so expressed was a verifiable fact and the authorities were within their rights to verify the same - stay granted.
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2014 (2) TMI 914 - CESTAT AHMEDABAD
Rejection of miscellaneous application seeking certified copy of Order-in-Appeal - Held that:- First appellate authority vide Order-in-Appeal No. CCEA-SRT-II/SSP-97/u/s 35A(3) (Misc. Order), dated 21-11-2012, has passed an order under the provisions of Section 35A rejecting the miscellaneous application filed by the assessee for providing him certified copy of Order-in-Appeal dated 26-2-2007. Suffice to say that the first appellate authority had no business to pass an appealable order on miscellaneous application filed for supplying an assessee a certified copy of Order-in-Appeal, we hold that the impugned order is non est and needs to be disposed as such. Be that as it may, we find that the appellant herein is asking only a certified copy of the Order-in-Appeal passed by first appellate authority on 26-2-2007, which in our considered view, needs to be given to the assessee. We are also surprised with the attitude of the assessee to file a miscellaneous application, when he could have got a copy of the Order-in-Appeal dated 26-2-2007 by filing a RTI application.
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2014 (2) TMI 913 - MADRAS HIGH COURT
Inclusion of cost of empty bags, stevedoring, clearing, forwarding charges and standardisation, bagging, loading and unloading charges, transport costs in turnover - Exemption under Section 2(p) of the TNGST Act read with Rule 6 of the TNGST Rules - Held that:- Tribunal has not committed any error as a reading of Section 2(p) of the TNGST Act makes it clear that "Taxable turnover" means the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed - Rule 6 of the TNGST Rules, clearly provides that the tax or taxes under (section 3 or 4) shall be levied on the taxable turnover of the dealer. In determining the taxable turnover, the amounts specified in the clauses shall, subject to the conditions specified therein, be deducted from the total turnover of a dealer.
Invoice No.5/8.3.93 shows the cost of the cargo DAP separately and other charges separately and that transaction has been effected based on the agreement dated 18.12.1992. This is also not disputed by the authority. Invoice Nos.1 to 4 are only made for other purposes and not for the purpose of filing the form A1 return - Nevertheless, these invoices have not been suppressed and they have been shown to the authority as cancelled and therefore, the question of relying upon those invoices does not arise.
Penalty under Section 22(2) of the TNGST Act - Held that:- it is made applicable only if the amount is not remitted to the State by the dealer who collects the excess amount of tax. In this case, there is no dispute that the respondent-assessee has remitted the amount to the State and therefore, placing reliance on the decision of this Court in State of Tamil Nadu v. K.Mohamed Ibrahim Sahib reported in [1991 (7) TMI 301 - MADRAS HIGH COURT], the Tribunal was justified in setting aside the levy of penalty - Decided against Revenue.
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2014 (2) TMI 912 - DELHI HIGH COURT
Waiver of pre deposit - Earlier Tribunal suspended the requirement of pre-deposit of the disputed amount in entirety - Whether the appellant is entitled to refund or whether it should be the basis for grant of entire exemption from pre-deposit is not an aspect which can be stated as a position of law - Held that:- Court is conscious of the fact that in the previous order relied upon, the Tribunal had directed suspension of the requirement of pre-deposit in entirety. In these peculiar circumstances, the impugned order is modified; instead of paying 20% of the amount of tax and interest, the appellant shall pay a reduced amount of 10% of tax and interest payable. The requirement of having to deposit 10% of penalty is hereby waived/cancelled - Time for pre deposit extended - Decided partly in favour of assessee.
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2014 (2) TMI 911 - CESTAT BANGALORE
Waiver of pre deposit - Demand of service tax - Maintenance or repair service - Held that:- maintenance/repairs of the air-conditioner was undertaken by Kirloskar during the material period and the said company was paying service tax also. This would indicate that the activity in respect of which the impugned demand was raised on the appellant is something other than maintenance or repair of air-conditioner. It is on record that the demand is on the amounts collected by the appellant from the occupants of the premises for the activity of operating/running the air-conditioner on a regular basis under specific agreements. We have perused a specimen agreement available on record and have found nothing therein which indicate that the appellant is collecting money from the occupants of the premises for repairs/maintenance of air conditioner. On these facts, without the need to refer to Rule 5, we hold that the appellant has a prima facie case on merits against the impugned demand - Stay granted.
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