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Showing 101 to 120 of 658 Records
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2007 (9) TMI 625
Issues involved: Appeal u/s 260A of the Income-tax Act, 1961 against the order of the Income-tax Appellate Tribunal regarding penalty proceedings for assessment year 1998-99.
Summary:
1. The Tribunal set aside penalty proceedings initiated by the Assessing Officer, upheld by the CIT(A), as no case was made out for penalty initiation based on the assessee's voluntary surrender of income.
2. During assessment, it was found that the assessee had not conducted business for three years but showed sundry creditors in the balance sheet. The assessee voluntarily surrendered the amount for taxation, stating it was time-barred loans. The Assessing Officer added back the amount and initiated penalty proceedings u/s 271(1)(c).
3. The CIT(A) relied on precedents to determine that mere voluntary surrender of income does not imply concealment. Without additional adverse material, the initiation of penalty proceedings was deemed unwarranted.
4. The Tribunal upheld the CIT(A)'s decision, noting the lack of additional adverse material beyond the voluntary surrender of income by the assessee.
5. Both authorities' concurrent view was supported, finding no error in the decision-making process. The lack of evidence to support penalty initiation against the assessee was emphasized.
6. The Court found no error in the decisions of the CIT(A) and the Tribunal, as the assessee's voluntary surrender of income did not warrant penalty proceedings. No substantial question of law arose, and the appeal was dismissed.
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2007 (9) TMI 624
The High Court of Bombay dismissed the appeal, stating that authorities have discretion to impose a lesser penalty under section 80 of the Central Excise Act, despite section 76 outlining specific penalties.
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2007 (9) TMI 623
Deduction u/s 80O, 80-IA and 80-HHE - gross income - disallowance u/s 37 - ‘provision of warranty’ based on management estimation - deduction as it had accrued on the date of sale - Contingent Liability - Mercantile System of Accounting - concessional taxes - total turnover - HELD THAT:- The important aspects notified in the Notification issued by the Central Government u/s 145(1)(2) of the I.T. Act are read along with Section 209(1) clauses (q-d) of sub-section (3) of the Companies Act and the accounting standard Notification regarding procedure to be followed for maintaining Accounts of a company issued by the Central Government in the year 1979 wherein it is stated “accrual” extracted in the said Notification. It mandates the assesses to maintain mercantile systems of accounting. Therefore the phrase ‘accrual’ occurred in the notification has got importance to interpret the phrase “laid down” occurred in section 37(1) of the I.T. Act.
Accordingly, we answer the said substantial questions of law Nos. 14, 9, 12 and 13 framed in these Appeals in favour of the assesses against the Revenue.
The assesses who were aggrieved of the assessment orders passed by the Assessing Authorities, whose orders are confirmed by the Appellate Authority have questioned the same before the ITAT in disallowing the special benefits claimed by them u/s 80A, 80IA and 80HHE of the I.T. Act for the respective assessment years mentioned in their returns by disallowing certain mounts and giving certain benefits which were the subject matter of appeals before the appellate Tribunal.
The Appellate Tribunal accepting the case of the assesses has set aside that portion of the assessment orders under the aforesaid provisions of the Act by accepting the grounds urged in the appeal and placing strong reliance upon the decision of the Calcutta High Court in M.N. Dastur’s [1997 (1) TMI 118 - ITAT BANGALORE]. No doubt, it has referred to in the impugned judgment the judgments of various other High Court in justification of its findings. aggrieved by the said impugned judgments of the Appellate Tribunal, the revenue filed these appeals before this Court framing certain substantial questions of law which are extracted above in this judgment and in support of the same has urged various legal grounds and requested this Court to answer the said substantial of law in favour of the revenue.
In our considered view having regard to the finding of fact recorded by the Assessing Authority in its order, whose findings are referred to supra by us have been rightly concurred with by the First Appellate Authority with valid reasons. The said concurrent findings of fact recorded by the First Appellate Authority on the Claim of the assessee for deduction in respect of the various items referred to supra has been allowed by the Appellate Tribunal on erroneous assumption of facts and material produced by the assessee which is not only contrary to the relevant statutory provisions of the I.T Act referred to supra but also the law laid down by the Supreme court and various other High Courts in the decisions referred to in the First appellate Authority’s order, wherein it has held that expenditures made by the assessee to do its business and therefore, that amount will be the capital receipt, but not revenue expenditure erroneously held by the Tribunal.
In our view, the said finding of fact of the Tribunal recorded on contentious point is not only erroneous but also suffers from error in law and therefore the same is liable to the set aside. Therefore, the deductions allowed by the tribunal in the impugned judgment in respect of those items from the gross income turnover of the assessee is totally impermissible in law.
The learned counsel appearing on behalf of M/s. K.R. Prasad for the assesssee has placed reliance upon the Circular and also the decision of the Apex court in the case of Cloth Traders Pvt. Ltd. Vs. Addl. CIT [1979 (5) TMI 2 - SUPREME COURT] in support of the concessional taxes u/s 80-O of the I.T. Act, the said decision is overruled by the Apex court in its later judgment in the case of Distributors (Baroda) P.Ltd. Vs. Union of India & Ors.[1985 (7) TMI 1 - SUPREME COURT] upon which strong reliance is placed by the learned counsel on behalf of the Revenue in support of his submission to answer the substantial question No. 6 in its favour.
Accordingly for the forgoing reasons, the appeals filed by the revenue framing the aforesaid substantial question of law Nos. 15, 16, 10, 13, 14 and 6 framed in these Appeals are answered against the assesses and in favour of the Revenue.
The appeal of the revenue in so far as the payment claimed by the assessee for deduction from their income under the warranty provisions, the relief is granted in favour of the assessees. Hence, the appeal of the revenue in this regard is dismissed.
Thus, we have answered all the substantial question of law regarding warranty in favour of the assessee and in respect of all other substantial questions of law regarding the benefit claimed by the assesses under the provisions of Sec. 80-O 80IA, Sec. 80HHE are answered in favour of the revenue by allowing the appeals partly as indicated above.
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2007 (9) TMI 622
Issues involved: Implementation of Final Order dated 27.3.2002, power of the Tribunal to implement orders u/s 35C (1) of the Central Excise Act.
The judgment pertains to an application filed for the implementation of a Final Order dated 27.3.2002. The order remanded the matter to the adjudicating authority with specific directions regarding refund claims for chocolate-covered biscuits, remoulded chocolates, and chocolate confectionery. The Tribunal's order emphasized that future refund claims for the same goods and period should not automatically be considered hit by unjust enrichment, leaving the question open for interpretation. Refund was granted for duty paid on remoulded chocolates, while the matter concerning chocolate confectionery was remanded to the adjudicating authority for further action, ensuring the assessee's right to be heard.
Regarding the power of the Tribunal to implement orders u/s 35C (1) of the Central Excise Act, the Tribunal's decision in the case of GMMCO Ltd. Vs. CC was cited. The Tribunal in that case highlighted its authority to intervene under Rule 41 of the CESTAT (Procedure) rules if its directions are flouted by the departmental authority. It emphasized the importance of ensuring compliance with its directives to prevent unnecessary rounds of litigation for the assessee. The Tribunal clarified that appealable orders passed by the adjudicating authority in response to its directions are subject to scrutiny and intervention if necessary to uphold justice.
In the present case, the Tribunal noted that the adjudicating authority had issued an appealable order in compliance with its directions. Consequently, the Tribunal found no merit in the application for implementation and dismissed the same, affirming the actions taken by the adjudicating authority in response to its directives.
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2007 (9) TMI 621
The Delhi High Court dismissed the appeal as it was covered by a recent decision of the Supreme Court in Manish Maheshwari v. Asstt. CIT [2007] 289 ITR 341. The Assessing Officer did not produce the satisfaction recorded in terms of section 158BD of the Income-tax Act, 1961. No substantial question of law arose in this case.
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2007 (9) TMI 620
Issues Involved:
1. Constitution of Advisory Committee under Section 3 of the Uttar Pradesh Sheera Niyantran Adhiniyam, 1964.
2. Directive to supply 20% of molasses for manufacturing country liquor.
3. Validity of show cause notices issued for non-compliance.
4. Alternative remedy and maintainability of writ petition.
5. Public policy and Article 47 of the Constitution.
Issue-wise Detailed Analysis:
1. Constitution of Advisory Committee:
The appellant argued that Section 3 of the Uttar Pradesh Sheera Niyantran Adhiniyam, 1964 mandates the State Government to constitute an 'Advisory Committee'. The High Court dismissed this argument, stating the provision was directory, not mandatory. However, the Supreme Court disagreed, emphasizing that the legislative intent and the scheme of the Act necessitate the constitution of such a committee. The Court noted that the Committee plays a crucial role in advising on matters related to the control of molasses and directed the State Government to constitute the Advisory Committee expeditiously.
2. Directive to Supply 20% of Molasses:
The appellant challenged the Government Orders directing the supply of 20% molasses for manufacturing country liquor, arguing that the entire production was required for captive consumption, and it even had to import molasses. The High Court upheld the directive, but the Supreme Court found that the directive applies only to the 'balance stock' of molasses, i.e., the excess stock after captive consumption. The Court held that if the appellant had no excess stock, the directive could not be enforced against it.
3. Validity of Show Cause Notices:
The appellant contended that the show cause notices issued for non-compliance with the directive were illegal. The Supreme Court clarified that if there is no balance stock of molasses, the authorities cannot compel the supply of 20% molasses for manufacturing country liquor. The Court allowed the appeal to this extent, indicating that the show cause notices would not be valid if there was no excess stock.
4. Alternative Remedy and Maintainability of Writ Petition:
The respondents argued that the writ petition was not maintainable due to the availability of an alternative remedy under Section 9 of the Act. The High Court rejected this preliminary objection, considering the totality of facts and circumstances, and the Supreme Court upheld this view. The Court noted that once a policy decision is taken by the Government, the remedy of appeal becomes an 'empty formality' or 'futile attempt'.
5. Public Policy and Article 47 of the Constitution:
The appellant argued that the directive to supply molasses for manufacturing country liquor was against public policy as reflected in Article 47 of the Constitution, which aims at prohibiting intoxicating drinks. The High Court ruled that Article 47 could not be enforced by a Court of Law, and the Supreme Court refrained from expressing any opinion on this issue, considering it unnecessary for the decision.
Conclusion:
The Supreme Court allowed the appeal partly, setting aside the High Court's order to the extent that the directive to supply 20% molasses would not apply if there is no balance stock. The Court directed the State Government to constitute the Advisory Committee as required by the Act and clarified that the respondents could take appropriate action in accordance with the law if there is evidence of excess molasses. Each party was ordered to bear its own costs.
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2007 (9) TMI 619
Extended period of limitation - Revenue proceeded against the appellants on the ground that they have suppressed the income shown in the Income Tax returns and hence the larger period was invoked - Held that: - Revenue has proceeded against the appellants on the basis of the Income Tax returns. The fact of the details has been disclosed in the Income Tax returns which indicates that there was no suppression of facts - Prima facie, the appellants have strong case to succeed on time bar - appeal allowed - decided in favor of appellant.
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2007 (9) TMI 618
Issues Involved:
The issue in this case is whether the notice to the assessee u/s 147/148 of the Income-tax Act, 1961 was issued within the prescribed time limit.
Summary:
Issue 1: Time Limit for Issuing Notice u/s 147/148
The proviso to section 147 of the Act states that no action shall be taken after four years from the end of the relevant assessment year unless certain conditions are met, including failure to disclose material facts. In this case, for the assessment year 1992-93, the four-year period would expire on 31-3-1997. The Assessing Officer recorded the reasons for reopening on 4-11-1997 and issued the notice on 20-11-1997. The Tribunal found that there was no failure on the part of the assessee to disclose all material facts necessary for assessment. The Tribunal concluded that the action under section 147/148 was barred by limitation, similar to a previous order for the assessment year 1994-95.
Issue 2: Conclusion of the Tribunal
The Court considered the Tribunal's decision as a pure question of fact and found no perversity in the conclusion reached. It was noted that there was no substantial question of law arising in the appeal, leading to the dismissal of the appeal u/s 260(A) of the Income-tax Act, 1961.
Therefore, the High Court upheld the Tribunal's decision that the notice issued to the assessee u/s 147/148 was beyond the prescribed time limit, as there was no failure to disclose material facts, resulting in the dismissal of the appeal.
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2007 (9) TMI 617
Whether Jindal Power was licensed to distribute electricity at any time? Without securing a license is it permissible for Jindal Power to distribute Power?
Whether Jindal Power could claim that it is a deemed licensee entitled to distribute power after coming into force of The Electricity Act, 2003?
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2007 (9) TMI 616
Issues:
The judgment involves the interpretation of section 80-O of the Income-tax Act, 1961 regarding the eligibility of deduction for consultancy services provided to foreign clients. The main issue is whether services rendered from India but utilized by a foreign recipient in India qualify for deduction under section 80-O.
Details:
The assessee entered into an agreement with a foreign company for consultancy services provided in India. The assessee claimed deduction under section 80-O for the income received in US dollars. The Assessing Officer initially disallowed the deduction, stating that the services were not rendered outside India to a foreign entity as required by the provision.
In the appeal, the Commissioner of Income-tax (Appeals) referred to a circular by the Central Board of Direct Taxes (CBDT) and directed the Assessing Officer to compute the net income for allowing the deduction under section 80-O. The revenue challenged this decision before the Tribunal, which upheld the allowance of deduction under section 80-O.
The revenue contended that since all services were performed in India, the assessee did not render services outside India as per Explanation (iii) to section 80-O. However, the CBDT circular clarified that as long as services are rendered from India and received by a foreign entity outside India, the deduction under section 80-O would be available.
The High Court noted that the key element for eligibility under section 80-O is the rendering of services to an entity outside India, not the location where the services are utilized. The Court cited a previous case to emphasize that consultancy services involve professional services, qualifying for the deduction. The Court agreed with the concurrent findings of the CIT(A) and the Tribunal that the services in this case were rendered from India to a foreign entity, thus upholding the allowance of deduction under section 80-O.
Ultimately, the Court found no substantial question of law in the appeal and dismissed it, affirming the decision to allow the deduction under section 80-O for the consultancy services provided by the assessee to the foreign client.
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2007 (9) TMI 615
The Supreme Court dismissed the Special Leave Petition on facts after condoning the delay. (Citation: 2007 (9) TMI 615 - SC)
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2007 (9) TMI 614
Whether the grant of bail by a learned Single Judge of the Allahabad High Court to the respondent who was charged for alleged commission of offence punishable under Sections 8, 15, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 incorrect?
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2007 (9) TMI 613
Issues:
Denial of Modvat credit/Cenvat credit on inputs due to lack of thickness specification on invoices.
Analysis:
The appeal challenges the Order-in-Original that set aside a duty demand of Rs. 27,91,555 against the appellant. Despite the respondent's absence, the appeal proceeds for disposal. The core issue revolves around the denial of Modvat credit/Cenvat credit to the appellant based on the alleged inability to use certain inputs for final product manufacturing. Specifically, the dispute centers on tin plates received without thickness specification on the invoices. The adjudicating authority concluded that the lack of thickness specification made the allegations unsustainable, leading to the demand set-aside.
The revenue, in its appeal, argued that the appellant failed to provide evidence regarding the thickness of the tin plates to claim credit. The absence of thickness specification on the invoices was deemed as the appellant not utilizing the received tin plates. However, upon reviewing the records, it was evident that the appellant received tin plates of various thicknesses for can manufacturing. The allegations in Annexure "B-3" aimed to deny credit based on unspecified thickness.
In a related appeal, the Tribunal had previously ruled in favor of the appellant concerning tin plates with thickness below 0.24 mm, indicating that the credit was valid. The current appeal highlights the inconsistency in the allegations, as the show cause notice lacked specific details to support the claim that the appellant did not receive the tin plates as mentioned. Given the precedent set by the Tribunal in the appellant's favor previously, the current appeal by the Revenue lacks merit. The Tribunal rejected the appeal, citing the previous decision in the appellant's case as a basis for the rejection.
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2007 (9) TMI 612
Whether the suit is not maintainable in view of the provisions of Sections 38 and 41 of the Specific Relief Act?
Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
Whether the agreement dated 30.5.95 as alleged is executed between the parties?
Whether the agreement dated 30.5.95 is forged and fabricated? If so, to what effect.
Whether the defendant is the owner of property No. 598/1, Gali Kaitwali, Sangtrashan, Paharganj, New Delhi?
Whether the Plaintiff is entitled to the possession and injunction prayed for?
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2007 (9) TMI 611
Issues involved: Impugning a Judgment and Order, Cenvat credit claim, Export rebate claim, Allegation of fraudulent claim of Cenvat credit.
Impugning a Judgment and Order: The appellant challenged a Judgment and Order passed by the Customs, Excise & Service Tax Appellate Tribunal, which set aside an order of the Commissioner of Central Excise. The Tribunal allowed the appeal, leading to the current appeal before the High Court.
Cenvat credit claim: The case involved M/s. Finolex Cables Ltd., manufacturers of jelly filled telephone cables and electric wires, obtaining raw material from their subsidiary for local manufacture and export. Cenvat credit was claimed for raw material used in local manufacture, and export rebate was claimed under Central Excise Rules. The Tribunal allowed the appeal based on the fact that there was no revenue loss to the Department as Cenvat credit for exported goods had been refunded.
Export rebate claim: The export rebate claim was made under Rules 18 and 19 of the Central Excise Rules, 2002. It was noted that the question of claiming export rebate arises when the goods are actually exported, and in this case, there was no dispute regarding the quantity of goods exported or the claim for rebate on non-exported goods.
Allegation of fraudulent claim of Cenvat credit: The contention was raised that the initial claim of Cenvat credit was fraudulent as it was alleged that the intention was to claim credit on exported goods. However, it was found that a part of the raw material was indeed utilized for manufacture, and the mere procurement of excess raw material does not automatically render the claim of Cenvat credit as fraudulent.
Conclusion: The High Court found no substance in the appeal and dismissed the same, upholding the decision of the Tribunal regarding the Cenvat credit and export rebate claims made by the respondent company.
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2007 (9) TMI 610
Issues Involved:
1. Mandamus for port authorities to provide services and release containers.
2. Declaration that port authorities cannot charge demurrage until containers are released.
3. Mandamus to sell cargo and reimburse expenses.
4. Mandamus to stop charging demurrage on FCL containers.
5. Mandamus to act according to the Major Port Trusts Act regarding demurrage.
6. Declaration for refund or adjustment of excess amounts recovered by port authorities.
7. Mandamus to discharge lien on goods before appropriation.
Detailed Analysis:
1. Mandamus for Port Authorities to Provide Services and Release Containers:
The appellants, ship owners, and charterers, carried 70 containers of urea from Dubai to Calcutta Port for delivery to a Nepalese company. Despite repeated notices and reminders, the consignee did not clear the goods. The appellants requested the port authorities to destuff the containers and release them, but the port authorities did not take any action, leading to the accumulation of demurrage charges. The court directed the port authorities to either sell the goods or destuff the containers within a specified time frame, ensuring the release of the containers.
2. Declaration That Port Authorities Cannot Charge Demurrage Until Containers Are Released:
The appellants argued that they should not be liable for demurrage charges beyond a certain date as they were not responsible for the delay in clearing the goods. The court initially held that the appellants were not liable for demurrage charges beyond 28th February 1997. However, the final judgment directed the appellants to pay demurrage charges until 23rd July 1997, the date when they filed the writ petition.
3. Mandamus to Sell Cargo and Reimburse Expenses:
The appellants sought a writ to command the respondents to sell the cargo and reimburse the transportation and destuffing expenses. The court directed the port authorities to sell the goods through public auction and keep the sale proceeds in a short-term deposit. The court also ordered the port authorities to reimburse the appellants for the expenses incurred for the sale.
4. Mandamus to Stop Charging Demurrage on FCL Containers:
The court addressed the issue of demurrage charges on Full Container Load (FCL) containers. The port authorities argued that they were entitled to charge demurrage as per the scale of rates fixed under the Major Port Trusts Act. The court held that the appellants were liable to pay demurrage charges until the date they filed the writ petition, after which the port authorities should have taken steps to sell the goods.
5. Mandamus to Act According to the Major Port Trusts Act Regarding Demurrage:
The court examined the provisions of the Major Port Trusts Act, particularly Sections 61 and 62, which empower the port authorities to sell goods if not cleared within a specified time. The court held that the port authorities should have taken action under these sections to sell the goods and clear the containers, thereby stopping the accumulation of demurrage charges.
6. Declaration for Refund or Adjustment of Excess Amounts Recovered by Port Authorities:
The appellants sought a declaration that the excess amounts recovered by the port authorities should be refunded or adjusted in their marine account. The court directed the port authorities to calculate the demurrage charges till the date of the writ petition and deduct the same from the sale proceeds. Any surplus amount after deduction should be kept deposited without any lien or charge.
7. Mandamus to Discharge Lien on Goods Before Appropriation:
The appellants requested a writ to command the respondents to discharge their lien on the goods before appropriating the same on any other account. The court held that the port authorities had a statutory lien for realizing rents chargeable over any goods brought to the port premises and directed them to first reimburse the appellants for the sale expenses before realizing the demurrage charges from the sale proceeds.
Conclusion:
The court allowed the appeal, setting aside the impugned judgment and directing the port authorities to calculate the demurrage charges till 23rd July 1997, reimburse the appellants for the sale expenses, and deduct the demurrage charges from the sale proceeds. Any surplus amount should be kept deposited without lien or charge. The court also clarified that the Indo-Nepal Treaty did not prevent the port authorities from taking action to sell the goods under the Major Port Trusts Act.
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2007 (9) TMI 609
Whether in the context of the Regulations governing the service conditions of the respondent, the recovery of the aforementioned amount and stoppage of three increments with cumulative effect is a major penalty and if so, the order of punishment is vitiated on any of the grounds noted above, warranting interference by the Court?
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2007 (9) TMI 608
Whether or not the sugar factory of the appellant has been adversely affected is essentially a question of fact and cannot be decided in proceedings under Article 226 or Article 136 of the Constitution?
Whether the impugned action of granting licence to respondent No. 4 by respondent Nos. 1 to 3 is mala fide?
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2007 (9) TMI 607
Issues involved: Interpretation of the Rajasthan Tax on Entry of Goods into Local Areas Act, 1999 in light of Article 301 of the Constitution of India.
Summary:
The High Court of Rajasthan, in a revision petition, addressed the issue of imposing entry tax on goods imported from outside India under the Rajasthan Tax on Entry of Goods into Local Areas Act, 1999. The Tax Board had previously ruled against imposing the tax. The respondent-assessee argued that a recent Division Bench decision declared the Act ultra vires of Article 301 of the Constitution of India. The Division Bench held that the tax on entry of goods into local areas, impeding free trade and commerce, is not compensatory and falls under Article 301 restrictions. As the Act was not enacted in accordance with Article 304(b), it was deemed ultra vires. The court allowed the petition, declared the Act ultra vires, and stated that demands against the petitioner are unenforceable if not already paid. Any tax collected from customers must be proven not passed on to buyers, consumers, or users to be retained by the petitioner. Refunds are applicable if the burden was not passed on. The petitioner can claim refunds from the Assessing Authority. The revision petition was dismissed in light of the Division Bench decision, with no costs awarded.
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2007 (9) TMI 606
Issues Involved: Appeal u/s 35G of Central Excise Act, 1944 against dismissal for failure to comply with pre-deposit condition.
The appellant filed Excise Appeal No. 2836 of 2006 before the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, seeking waiver of pre-deposit of duty and penalty. An error in the order was rectified, but the appellant failed to make the necessary deposit, leading to dismissal of the appeal by the Tribunal.
The appellant, through counsel, expressed readiness to deposit the duty amount within four weeks. The Additional Solicitor General for the respondents agreed to the deposit condition for restoration of the appeal.
Considering the fair stand of the Additional Solicitor General, the appeal was disposed with a direction for the appellant to deposit the specified amount within four weeks. Failure to comply would result in automatic dismissal of the appeal. The Tribunal was directed to hear and decide the appeal on merits upon deposit.
The appeal was allowed with no order as to costs.
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