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Showing 421 to 440 of 1510 Records
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2015 (1) TMI 1092
CENVAT Credit - excess utilization of credit more than 20% - Cargo handling service - Imposition of penalty - Held that:- In the absence of detailed information regarding the amount payable every month, the credit available every month, the amount of services provided in DTA, non-taxable services, etc., no conclusion can be reached and no details have been made available in the appeal memorandum. Nevertheless, the one claim made by the learned counsel appears to be a reasonable proposition. The learned counsel submitted that at best the appellants can be said to be liable to pay interest for the amount which was paid from Cenvat credit amount instead of making payment in cash to discharge their service tax liability. - The stand taken by the department which in our opinion is legally correct, would result in a situation where the appellants have to deposit the entire amount of service tax utilized in excess of 20% but they can take back the credit into their account and utilize the same for subsequent period. That being the position, obviously if we require the appellant to pay interest on the excess utilization, it would reduce the complications involved in making payment in cash and taking back the Cenvat credit thereafter and would reduce work for all concerned. In Solar Chemferts Pvt. Ltd. case reported in [2011 (6) TMI 640 - CESTAT, MUMBAI], this Tribunal took a similar view in respect of the contravention of Rule 8(3) of Central Excise Rules. In our opinion, it would be appropriate to follow the same in this case also.
Appellants are directed to calculate the amount payable as interest because of excess utilization of credit and make payments of the same. At present, the requirement of pre-deposit in excess of the interest payable is waived and stay against recovery is granted till the directions hereinabove are complied with and a final order about finalizing the stay application is passed by this Tribunal. - Decided partly in favour of assessee.
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2015 (1) TMI 1091
Penalty u/s 58 of Uttarakhand Value Added Tax Act, 2005 – Tribunal imposed penalty at the rate of 20% for both the quarters – Absence of power or not – Held that:- The only basis for imposing penalty can only be that there is no sufficient cause - once the sufficient cause is not there, then there can be no doubt that there will be no illegality if the minimum is imposed – the same has been held in Union of India Versus M/s Rajasthan Spinning & Weaving Mills AND Commissioner of Customs and Central Excise Versus M/s. Lanco Industries Ltd. [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - according to the revisionist, this is a case where the revisionist’s case is on better footing - revisionist filed the return on time, but there is no provision as such for granting extension of time to make the payment - what is contemplated is time to file the return - the revisionist had accepted the juridical basis for finding the penalty was leviable, which was the absence of sufficient cause - It is not open to the revisionist to raise the questions and, that too, as substantial questions of law in a challenge against the order of the Tribunal, which was rendered in appeals filed by the Department - the attempt to get the matter re-agitated in a case where the departmental appeals were already disposed of, appears to have been highly belated and, at any rate.
Effect of amendment u/s 9 of Central Act carried out in 1976 w.e.f. 5.1.1957 – Held that:- in Manganese Ore (India) Ltd. versus The Regional Assistant Commissioner of Sales Tax, Jabalpur [1975 (11) TMI 164 - Supreme Court of India] it has been held that since penalty is a substantive matter and unless the penalty is provided for in the Central Act, no penalty could be levied by virtue of Section 9 of the Central Act, under the State Law but by validating Act the law was amended with effect from 1956 and Section 9 (2A) of the Central Act was inserted - the penalty of the nature, which is imposed would be permissible under the State Law – Relying upon Commissioner of Sales Tax, U.P., Lucknow versus New Central Jute Mills Co. Ltd. [1979 (4) TMI 148 - ALLAHABAD HIGH COURT] thus, after Section 9 (2A) of the Central Act was inserted by the amendment in 1976, there is power to visit an assessee with penalty in the circumstances made out u/s 58 of the Act – The contention of the revisionist is accepted that it is for the first time and apart from this there is no penalty levied – thus, rather than remitting the matter the penalty is reduced @ 15% in both the quarters in place of 20% fixed by the Tribunal – Decided partially in favour of revisionist.
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2015 (1) TMI 1090
Denial of CENVAT Credit - credit on rough forged rolls - Held that:- Observation of Commissioner (Appeals) that Machined rolls made from forged rolls being a essential component of rolling mill and classifiable under Central Excise tariff Chapter Heading 84; thus forged rolls are inputs used for manufacture of specified capital goods i.e. machine rolls and as such are admissible for Cenvat credit in terms of Rule 2(k) of Cenvat Credit Rules, 2004, cannot be found faulted. Therefore, same is upheld - Decided against Revenue.
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2015 (1) TMI 1089
Denial of input service credit on erection and installation charges - Held that:- The fact that these charges have been borne by the appellant is not in dispute. Further the machine is inoperative in the absence of erection and installation and therefore, these have been borne by the appellant. In the light of decision of the Hon'ble High Court in the case of Ultra Tech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT], wherein it was held that an assessee who is a manufacturer of excisable goods is entitled for input service credit of the services availed by him in the course of their business. Admittedly, in this case, the appellant has availed the services of erection and installation of machinery is part of the business. Therefore, the appellants are entitled for input service credit.
Whether the appellant is entitled to take the benefit of exemption Notification 22/03 in the absence of re-warehousing certificate - Held that:- admittedly, the appellant cleared the goods under CT-3 certificates and copy of the same was produced by him before the department at the time of clearance between 2007-08. Within 90 days, the appellant was required to file re-warehousing certificate which they failed to do so but no steps has been taken by the revenue to verify whether the re-warehousing certificate has been obtained or not to deny the benefit of the Notification 22/03. Further, the audit took place in 2010. At that time also, this fact came to the knowledge of the department. Thereafter, the show-cause notice was issued invoking the extended period of limitation on 02.03.2012, and there is no allegation of suppression of facts or wilful misstatement. Therefore, the extended period of limitation is not invocable. Accordingly demand under this head is barred by limitation. - Decided in favour of assessee.
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2015 (1) TMI 1088
Waiver of pre deposit - illegal manufacture and clandestine clearance of the Pan Masala/ Gutkha - Held that:- lot of evidence is required to be scrutinized and examined before arriving at a final verdict. The fact that Shri Vijay Mishra has not been found by the Revenue nor has been produced by the assessee and his address had been found to be fake, coupled with the evidence of recovery of supari and oven machine from the residential premises read with the statements of the workers, tilt the weight of the evidence towards the Revenue. However, keeping in view the fact that there is no inculpatory statement by the appellant and he has produced the rent deed which was not questioned by the Revenue and keeping in view the financial condition of the appellant, who is an individual and not a body corporate, we deem it fit to direct the appellant to deposit an amount of Rs . 10,00,000 within a period of twelve weeks, subject to which the pre-deposit of balance amount of duty and penalty shall stand waive - Partial stay granted.
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2015 (1) TMI 1087
Waiver of pre-deposit of cenvat credit - It is alleged by the Department on the basis of evidences collected that M/s Koolmint Manufacturing Company, do not have necessary infrastructure for manufacture of the inputs, therefore, the receipt and availment of cenvat credit by M/s Kaizen Organics Pvt. Ltd., on the said inputs were, accordingly irregular. - Held that:- an amount of ₹ 15.00 lakhs has been deposited by M/s Koolmint Manufacturing Company during adjudication and now the ld.C. A. for the Applicants, makes an offer to deposit further amount of ₹ 7.5 lakhs, which, in our opinion, is sufficient to hear their Appeals. In the result, we direct M/s Kaizen Organics Pvt. Ltd., to deposit ₹ 7.5 lakhs within a period of eight weeks from today and report compliance on 30.12.2014. On deposit of the said amount, the balance amount of dues adjudged against Applicant No. (i) & (iii) and all dues adjudged against Applicant No.(ii), i.e. Shri Vikash Bajoria, would stand waived and its recovery stayed during pendency of the appeals - Partial stay granted.
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2015 (1) TMI 1086
Denial of CENVAT Credit - Invoice in the name of branch office - Held that:- In view of the fact that the branch offices have no separate accounting system and their accounts form part of the head office accounts, which is registered as an ISD, I hold that the appellant has rightly availed cenvat credit in respect of the services received at the branch office/regional office and consequently, their distribution in the manufacturing unit is also proper. I further hold that the Revenue has erred in disallowing the credit on misconception of the fact that the invoices are not in the name of the appellant-assessee. In the facts and circumstances, the invoices are found to be in the name of the assessee-company, issued to the branch offices. The payments are accounted at the head office which is registered as an ISD. The availment of credit and the distribution by the head office are legal and proper. Thus the appeal is allowed. The impugned order is set aside. The appellant will be entitled to consequential benefits in accordance with law. - Decided in favour of assessee.
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2015 (1) TMI 1085
Area based Exemption under Notification No. 56/2002-C.E. - certificates produced by the respondents do not mention the base employment figure and the Khasra Number on which the unit, are located are not mentioned in the notification - Held that:- Certificate issued by the Labour Officer, Jammu read with the certificates issued by the General Manager, DIC leave no doubt that the additional investment made by the respondent units has resulted the more than 25% increase in regular employment. The fact of additional investment made for installation of additional machinery is not disputed by the department. In view of this, the condition of additional investment resulting in more than 25% increase in regular employment stands satisfied. - The exemption is applicable to the goods, other than those mentioned in Annexure-I to the notification and which are mentioned in the units located in the industrial area, Growth Centre, etc., specified in Annexure-II. In the Annexure-II the location of the industrial area, growth centre, etc., notified is specified by ;(a) Tehsil and the Police Station/village in which it is located and (b) Khasra number of which the industrial area comprises. In this case both the respondent units are located in “Gangyal Private Local Industrial Area” falling under Gangyal Police Station of Tehsil Jammu. The Khasra number 740 to 778 are mentioned against this industrial area and thus the units whose khasra number are 770 and 770 Min are within this industrial area. The Assistant Commissioner has also got confirmed that Gangyal Private Land Industrial Area falls within the jurisdiction of Police Station Gangyal. In view of this, denial of the benefit of exemption under Notification No. 56/2002-C.E. to the respondent units on the ground that the khasra numbers of their plots of land are not mentioned in the Annexure-II to the notification is incorrect. - Decided against Revenue.
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2015 (1) TMI 1084
Classification of goods - goods were described as Embroidery in strips/motifs manufactured by the appellant with the aid of vertical type automatic shuttle machine with the aid of power - Held that:- As per Fairchild’s Dictionary of Textiles, Embroidery is defined as “an example of the decoration of fabric or leather ground with needle-worked Accessory Stitches made with thread, yarn, or other flexible materials. Although hand embroidery is a widely practiced craft, most commercially produced embroidered textiles are made by machine.” Similarly, as per the definition of Textile Terms and Definitions, Eleventh Edition of the Textile Institute, Embroidery is defined as “a decorative pattern superimposed on an existing fabric by machine stitching or hand needlework.” As per the Explantory Notes, Embroidery can be on visilale ground or without visible ground. In such case, the base fabrics would have been removed either chemically or otherwise. Therefore, Chapter Heading 5805 can cover both embroidery on the visible ground or without the visible ground. - there are two possible views which can be taken. The first view is that if there is dyeing or printing on the fabrics, then it would fall within the scope of Note 8 to Chapter 58. The other equally plausible view is that the embroidery itself cannot be considered as fabrics and, therefore, Note 8 to Chapter 58 would not apply. In view of the two possible views, the appellant has made out a case for grant of stay. - Stay granted.
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2015 (1) TMI 1083
Denial of CENVAT Credit - Captive consumption - Held that:- Oxygen gas manufactured by M/s. IMIL was cleared to M/s. IIL during the period October, 2000 to March, 2001 were through pipeline without any cover of invoice and in March, 2001 on realizing their mistake M/s. IMIL paid the duty along with interest are not in dispute. In these circumstances, the allegation of suppression of facts, fraud, collusion or any wilful misstatement are not sustainable. Therefore, as M/s. IMIL have paid duty along with interest of their own. In these circumstances, we hold that M/s. IIL is entitled to take credit of the duty paid by M/s. IMIL on oxygen gas during the impugned period. In these circumstances, the duty demand confirmed against M/s. IMIL is not sustainable and not warranted as duty has already been paid by M/s. IMIL along with interest. Further, the Cenvat credit availed by M/s. IIL is proper and legal in the eyes of law. Therefore, the impugned order to deny Cenvat credit M/s. IIL is set aside as the demands are not sustainable and further it is held that there is no suppression of facts, fraud, collusion or wilful misstatement. In these circumstances, penalties on the appellants are not imposable. - Impugned order is set aside - Decided in favour of assessee.
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2015 (1) TMI 1082
Enhancement in valuation of goods - Bar of limitation - Imposition of penalties - Held that:- Appellant has written to the department on 23-4-2007 that they are paying duty as per Rule 6 of the Valuation Rules not as per Rule 10A of the Valuation Rules, 2000 and they are also filing regular returns with the department and it was not objected. Moreover, the appellants have challenged the constitutional validity of Rule 10A of the Central Excise Valuation Rules before the Hon’ble High Court of Bombay. In these circumstances, we hold that the extended period of limitation is not invokable and extended period is not invokable. Therefore, the demand of duty beyond the period of limitation is set aside and penalties on both the appellants before us are not imposable - demand of duty within the normal period of limitation is upheld.
Cess may continue to be levied and collected on the vehicles on the condition they are cleared from the premises of the manufacturers and no cess should be levied again in case the body on the chassis is built by an independent body builder on the cess paid chassis. In the case of S.M. Kannappa Automobiles P. Ltd. v. Commr. of C. Ex., Bangalore reported in [2007 (11) TMI 207 - CESTAT, BANGALORE], the issue came up before this Tribunal and this Tribunal held that as the body builder are not required to pay cess. Cess paid on chassis in this case also on chassis M/s. Tata Motors have paid the cess. Therefore, we hold that the appellants are not required to pay cess as the body on cess paid chassis is built by the appellants. Therefore, demand of cess on automobile is set aside. - Decided partly in favour of assessee.
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2015 (1) TMI 1081
Restoration of appeal - there is no formal order under Section 35B(2) - Held that:- In the notesheet, though there is a proposal to file an appeal against the impugned order, the same had been merely signed by the Commissioners constituting Committee without stating as to whether they agree or disagree with the same and therefore, there is no decision on the notesheet to file appeal against the Commissioner (Appeals)’s order. Besides, no formal order under Section 35B(2) mentioning as to why the impugned order is not legal and proper and authorizing a Central Excise Officer to file the appeal against the same has been produced. In view of this we hold that appeal of the Revenue is not maintainable and there is no merit in the Revenue’s application for restoration. - Restoration denied.
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2015 (1) TMI 1080
Stay on export of decorated female figure with two hands and legs missing - Product antique or non antique - Commissioner held product as non antique - Held that:- This is issue of technical nature and requiring in depth specialized knowledge of the statue which are being exported. Detailed procedure was followed by ASI including appeal to the Director General, ASI as well as the matter finally went to Hon'ble High Court of Rajasthan. On the basis of direction of High Court, the matter was re-examined by the special constituted committee. The committee after detailed analysis allowed one of the statute non antiquity. However, regarding decorated female figure with two hands and legs missing, they maintained that it is antiquity on the basis of treatment of ornaments, eyes, nose, rounded face and drapery this female image in red sandstone is assigned to 10th - 11th century. - Once a specialized committee have re-examined the matter and came to the conclusion, Commissioner (Appeals)'s view does not have finality in the matter. Considering the nature of the product has historical value, the product cannot be permitted to leave India till finalization of decision in the case. Accordingly, it is a fit case for grant of stay on the operation of Commissioner (Appeals)'s order. - Decided in favour of Revenue.
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2015 (1) TMI 1079
Re-export of goods - Liability to port charges - Revenue contends that bar of Res-judicata applies - Held that:- Bar contained in Section 11 of the Code of Civil Procedure shall not apply to this case because the learned Trial Court did not decide the issue. Unless an issue has been heard and finally decided there can be no res judicata. In that view of the matter, it is clarified that the aforesaid order directing the writ petitioner to pay the port charges shall not stand in the way nor shall constitute res judicata in deciding the issue as to whether the delay was on account of the laches on the part of the Customs authority and in deciding the issue as regards the consequences thereof. - Appeal disposed of.
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2015 (1) TMI 1078
Request to release the consignment of Snap Fasteners, Sliders, Elastic Tapes and Sewing Needles and other goods and permit the petitioner to re-ship the consignment of Snap Fasteners, Sliders, Elastic Tapes and Sewing Needles and other goods lying in the custody and control of the respondents in the Chennai Port - Held that:- It is the case of the petitioner that the alleged goods have been wrongly shipped along with the declared goods. According to the petitioner, since the importer has disowned the goods, they may be permitted to re-ship the goods. It is also the case of the petitioner that the show cause notice has been issued only to the importer and not to them. The petitioner claims to be the owner of the goods. - The contention of the petitioner that the staff of the warehouse have wrongly dispatched the goods instead of the declared goods has to be proved only by way of adjudication. Therefore, the relief sought for by the petitioner to release the goods or reshipment cannot be granted at this stage. However, since the importer has disowned the goods, there is no impediment for the authority to permit the petitioner to participate in the adjudication process, as they claims to be the owner of the goods. Further, the petitioner company is a foreign company and the allegation against them is that the goods have been smuggled into India and as the importer has stated that he has never given any such order at all, to safeguard the interest of the revenue, there should be a condition to permit them to seek for either release or return of the goods. Therefore, the petitioner is permitted to participate in the adjudication proceedings.
However, since huge amount has been involved in respect of anti-dumping duty to the tune of two crores, the petitioner, in order to show their bona fide, shall produce bank guarantee for a sum of ₹ 50,00,000 before the respondents and on such production of bank guarantee, the respondents will issue notice to the petitioner for adjudication. The petitioner is also directed to appear before the authority on the date to be fixed by them for adjudication process. Since the goods have been lying in the Port, the respondents are directed to complete the adjudication process within a period of four months from the date of receipt of a copy of this order, after affording reasonable opportunity to the petitioner as well as the importer. - Petition disposed of.
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2015 (1) TMI 1077
Penalty u/s 114 - Whether the first respondent authority and the second respondent Tribunal is correct in holding that the charges of Section 114(i) of Customs Act, 1962 is made out in the facts and circumstances of the case against the appellants warranting imposition of penalty against the appellant - Held that:- The Adjudicating Authority after considering the allegations in the show cause notice, the reply given by the appellant, and after affording an opportunity of personal hearing to the appellant, has elaborately discussed about the complexity and the involvement of the appellant in the smuggling of Red Sanders Wooden logs, which are prohibited items. - Court exercising jurisdiction under Section 130(1) of the Customs Act is not inclined to re-appreciate the factual findings recorded by the Adjudicating Authority and confirmed by the Tribunal. In the absence of any error of law pointed out by the appellant, this Court is not inclined to interfere with the order of penalty. - Decided against assessee.
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2015 (1) TMI 1076
Validity of import licence - power of DGFT - Commissioner held that DGFT has no powers to issue import licence to validate as imports made in past and as such, the import licence is invalid - Tribunal reversed the findings of the commissioner - appellant are engaged in the business of distribution of Satellite channels in India imported de-coders of model CDE 2002 -BMAC not sure as to be freely importable or required licence wrote DGFT for clarification - Held that:- it is not disputed that on 11-2-1995, the importer sought clarification from the DGFT as to the necessity of possessing the import licence. Concededly, the DGFT clarified that no such import licence was required. On that understanding, the goods in question were imported. It is not in dispute that the goods were cleared after they were classified under Heading 8528, in tune with the Supreme Court’s judgment in Commissioner of Customs, New Delhi v. C-Net Communication (I) Pvt. Ltd., [2007 (9) TMI 15 - Supreme court of India]. In these circumstances, the insistence of the Customs authorities that they should have their pound of flesh despite the fact that the culpability of the importer is not apparent, seems to this Court, an insistence on hyper technicalities with a view to asserting power. In effect what the Customs authorities are contending is that they do not agree with the issuance of licence by the DGFT which covered the said import, and that they could still treat the goods as invalidly brought in and take punitive action. Having regard to the totality of facts and circumstances, this Court is of the opinion that no question of law arises for consideration. - Decided against Revenue.
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2015 (1) TMI 1075
Illegal auction of confiscated goods - The defendant had approached the Custom authorities at Lucknow and came to know that goods were already disposed of for a consideration of ₹ 1,04,481/-. Later, the same was offered to be refunded provided fulfilment of certain formalities, but the assessee has claimed entire value of the goods i.e. ₹ 3,80,000/- - Appellate authority allowed to refund entire claim. - Held that:- Supreme Court in the case of Northern Plastics Ltd. v. Collector of Customs & Central Excise - [1999 (9) TMI 86 - SUPREME COURT OF INDIA] as well as in the case of Shilps Impex v. U.O.I. - [2002 (1) TMI 62 - SUPREME COURT OF INDIA] held that during the pendency of the appeal confiscated goods could not have been auctioned without prior permission of the appellate court.
Matter was sub judice before the appellate court, but the Department in a haste manner has disposed of the goods without seeking permission from the appellate court where the matter was sub judice. Thus, the Department has committed a serious blunder by auctioning the goods which was a subject matter of an appeal and without prior permission of the appellate court, is not permissible to sale the same, as per the case laws and the circulars which have already been discussed by the appellate authority in their orders. - Decided against Revenue.
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2015 (1) TMI 1074
Violation of procedure contemplated in Rule 4 - Rejection of request of cross examination - Held that:- On a bare reading of the show cause notice it is seen that a complaint was made under section 16(3) of FEMA for contravention of the provisions of FEMA. The adjudicating authority on a perusal of the complaint and after considering the cause assigned by the complainant in the said complaint, stated that it appears that there is contravention in the said complaint against the petitioners of the provisions of section 3(c) read with section 42(1) of FEMA, as mentioned in the complaint. Therefore, the petitioner was required to submit reply to the show cause notice in writing within thirty days from the date of notice as to why the adjudicating proceedings as contemplated under section 13 of FEMA should not be held against them for contravention of the provisions of section 3(c) of FEMA as mentioned in the complaint, which was enclosed along with the show cause notice. The attention of the petitioners was invited to Rule 4 of the Rules. Further, the petitioners were directed to appear either in person or through their Legal Practitioners/Chartered Accountants duly authorised by them to explain and produce such documents as may be useful or relevant to the subject matter of enquiry.
There is nothing to indicate that the adjudicating authority has straight away proceeded to the stage contemplated under sub rule (4) of Rule 4. The show cause notice does not indicate any such conclusion nor it may be stated that the respondent has violated the procedure under Rule 4 of the Rules. In fact, the attention of the petitioners has been drawn to Rule 4 of the Rules. Therefore, the plea raised by the petitioner that the show cause notice is vitiated for having not following the procedure under Rule 4 of the Rules, deserves to be rejected. - Decided against the petitioner.
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2015 (1) TMI 1073
Condonation of delay - 1100 days - sufficient cause - Held that:- In the present case, we find that the appellants have been lackadaisical in their approach and in a nonchalant manner they have tried to seek condonation of delay. The Supreme Court in the decision Esha Bhattacharjee V. Managing Committee of Raghunathpur, Nafar Academy and others, [2015 (1) TMI 1053 - SUPREME COURT] has deprecated such practice of showing leniency in condoning the delay. The parameters laid down by the Supreme Court when not to condone delay get squarely attracted to the facts of the present case and we find no reason to condone the delay and the Tribunal was correct in dismissing the appeal on that score. The plea of illness, payment of tax at some point of time, adjustment of payment before the Sub-Court, Kancheepuram are all matters on merit. That stage has not come. In any event, we are not inclined to go into such issue, as we are now concerned only with the plea of condonation of delay of approximately more than 1100 days in filing the appeal before the Tribunal in each one of the case.
A faint plea has been made by the learned counsel appearing for the appellants that attachment orders have not been served on the appellants and therefore, there is a breach of law and the said issue has not been raised and considered by the Tribunal. The appellants can agitate this issue before an appropriate forum, if legally permissible. At present, we are only concerned with the issue of condonation of delay and this Court, after detailed consideration, finds that the appellants have not shown sufficient cause for condoning the delay. The parameters laid down by the Supreme Court in the above-said decision when not to condone delay gets attracted to the facts of the present case. Therefore, we are not inclined to interfere with the order of the Tribunal. - Decided against assessee.
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