TMI Blog2011 (4) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the order dated 24.05.2010 of the CIT (Appeals) for the assessment year 2007-08. 2. The only issue in this appeal relates to the assessee s claim for deduction u/s 80IB in respect of refund of excise duty. The assessee is a firm engaged in the business of manufacture of aluminum wire rods at IGP, SIDCO, Phase-II Samba, Jammu Kashmir. During the assessment proceedings, the assessee had filed computation of taxable income wherein deduction u/s 80IB amounting to Rs 5,85,84,089/- was claimed. The A.O went through the details and found that the assessee had received excise duty refund of Rs 5,68,41,800/- during the financial year. The A.O by applying ratio laid down by the Supreme Court in the case of Liberty India vs. CIT 225 CTR 233 and the decision of ITAT, Amritsar Bench, in the case of M/s Shree Balaji Alloys vs. ITO in ITA No.255/Asr/2009 for the assessment year 2005-06 did not accept the assessee s claim for relief u/s 80IB of the Act in relation thereto. When this was proposed to the assessee, the assessee furnished a judgment of Delhi High Court in the case of CIT vs. Dharampal Premchand Ltd. 317 ITR 353 wherein this issue has been claimed to have been decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween refund of excise duty paid or that the refund of excise duty paid was dependent on the said notifications is, to say the least, completely untenable. As a matter of fact as found by the Tribunal, as well as, the CIT(A) in the instant case, the assessee has adopted an incorrect accounting methodology. The assessee as found by the authorities below had on the payment of excise duty debited the profit and loss account and upon receipt of refund credited the profit and loss account. The net effect on the profit and loss was nil on account of the methodology followed by the assessee. There was thus, according to us, no reason to exclude the amount of refund of excise duty in arriving at profit derived for the purposes of claiming deduction u/s 80IB of the Act. 6.1 The Court further at page 364 held: The fourth case cited by the learned counsel for the Revenue was CIT vs. Ritesh Industries Ltd. (2005) 274 ITR 324. A Division Bench of this Court was called upon to construe the provisions of Section 80.I of the Act in the context of the claim of the assessee for inclusion of amounts received as duty drawback for the purposes of ascertainment of profits or gains derive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTS OF THE CASE M/s J K Aluminum Co., Industrial Growth Centre, SIDCO, Phase-II, Samba, District Jammu, are holding Central Excise Registration No.AAFFJO625FXM001 dated 03.03.2006 are engaged in the manufacture of Aluminum Wire Rod falling under Tariff item No.76011040 of the 1st Schedule to the Central Excise Tariff Act 1985 (5 of 1986). 2. The party has filed a refund claim of Rs.61,05,409/- on account of Central Excise duty and Education Cess paid through PLA for the month of July 2006under Notification 56/2002-CE dated 14.11.02 as amended. The unit is claiming refund in the category of new units, commencing production after 14.6.2002 as per Notification. 3. The verification report was called for from jurisdictional Range Office, Range Officer vide report C.No.GL-6(65)J/RBC-PBC/Refd/JKA/2006/606 dt. 30.8.2006 has confirmed after verification that the unit started its commercial production on 15.5.2006 as per DIC Registration No. MSU/2005/79 dated 22/10/2006. The party purchased land for establishing the unit was taken on lease from SIDCO on 11th August 2005 and after this the party installed new machinery from February 2006 to May 2006. The party has given permission f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 min (which are parts of Khasra No. 82, 83 84 respectively) classified during Bandobast under the type of land viz Meredeem Banjar Qadeem, Gair Mumkin situated at industrial growth center, Samba of village Mendhera, Tehsil Samba, which is mentioned in annexure-II to the Notification No. 56/2002-CE dt. 14/11/02 as amended. I observe that refund of Rs 1,19,718/- claimed by the party on account of payment of Education Cess paid through Account Current (PLA) is not admissible to the party on the ground that the Education Cess has been levied under the Finance Bill 2004 and not under any of the Acts mentioned in the subject notification. Therefore, I hold that refund of Rs 1,19,718/- claimed on account of Education Cess is not admissible to the party and is liable to be rejected. The refund of Rs 59,85,691/- claimed on account of Central Excise duty paid through Account Current (PLA) during the month of July,2006 is admissible to the party in terms of Notification No. 56/2002-CE dated 14/11/2002 as amended. 5. Having regards to the above discussion and findings, I pass the following order in this case: O R D E R (i) I sanction the refund of Rs 59,85,691/- (Rupees Fifty ni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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