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Showing 161 to 180 of 872 Records
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2009 (4) TMI 908
Issues Involved:
1. Shortage and excess of raw materials and finished goods in M/s. JSPL and M/s. JSEP.
2. Duty demand and penalty imposition on M/s. JSPL and M/s. JSEP.
3. Confiscation of excess stock and imposition of redemption fine.
Summary:
Issue 1: Shortage and excess of raw materials and finished goods in M/s. JSPL and M/s. JSEP
1.1. During the visit on 25.6.99, shortages and excesses were found in both M/s. JSPL and M/s. JSEP. Specifically, M/s. JSPL had shortages of 28 MT of Pig Iron, 128.58 MT of C.I. Scull Scrap, and 416 pieces of back plate and clips, along with excesses of 13.43 MT of runners & risers and various finished goods. M/s. JSEP had shortages of 56.915 MT of Pig Iron and 232.125 MT of C.I. Scull scrap.
1.2. On 18.8.2000, further discrepancies were found in M/s. JSPL, including shortages of 12.12 MT of Pig Iron and 153.36 MT of C.I. Scull Scrap, and 1203 pieces of anchor plates. No discrepancies were found in M/s. JSEP on this date.
Issue 2: Duty demand and penalty imposition on M/s. JSPL and M/s. JSEP
2.1. The show cause notices (SCNs) issued to M/s. JSPL and M/s. JSEP led to adjudications confirming duty demands and penalties. The Commissioner(Appeals) modified the penalties and redemption fines imposed on M/s. JSPL, reducing them significantly.
2.2. The Commissioner(Appeals) set aside the Additional Commissioner's order against M/s. JSEP, stating that there was no requirement to modify the recorded balance of goods found short during stock checking.
Issue 3: Confiscation of excess stock and imposition of redemption fine
3.1. The confiscation of excess stock and imposition of redemption fines were upheld by the Commissioner(Appeals) for M/s. JSPL, with modifications to the penalties and fines.
Detailed Judgment:
Appeal No. E/659/07-SM (M/s. JSEP)
3.2. The Department's appeal against M/s. JSEP was dismissed. The Commissioner(Appeals) held that the Department cannot ask the manufacturer to correct the quantum of shortage after demanding duty based on the book entries. The logic was that once the duty is demanded treating the book entries as correct, the manufacturer should not be required to adjust the book balance.
Appeals No. E/1178-79/07-SM (M/s. JSPL)
4.1. The shortages of finished goods detected on 25.6.99 and 18.8.2000 were upheld, with no satisfactory explanation provided by M/s. JSPL.
4.2. The duty demand for the shortage of 12.12 MT of Pig Iron and 153.36 MT of C.I. Scull Scrap detected on 18.8.2000 was upheld due to lack of explanation.
5. The duty demand for 28 MT of Pig Iron and 128.58 MT of C.I. Scull Scrap detected on 25.6.99 was set aside, as the excess finished goods were found to be manufactured from the raw materials found short. However, the duty demand for the shortage of 416 back plates and clips was upheld.
6. The confiscation of the finished goods and cenvated inputs found excess was upheld due to lack of satisfactory explanation.
Conclusion:
7. The impugned order-in-appeal for Appeals No. E/1178-79/07 was modified to the extent mentioned, and the appeal No. E/659/07-SM against the Commissioner(Appeals) order No. 122-RPR-II/07 was dismissed.
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2009 (4) TMI 907
Valuation - inclusion of performance bonus received in the assessable value - suppression of facts - extended period of limitation - Held that:- The issue is decided in the case of JALAN REFRACTORIES (P) LTD. VERSUS COMMISSIONER OF C. EX., JAIPUR [2000 (9) TMI 192 - CEGAT, CHENNAI], where it was held that bonus received after clearance of goods for better performance is not includible in the assessable value - demand of duty do not sustain.
Once the duty demand is not sustainable, interest and penalty cannot be levied.
Appeal allowed - decided in favor of appellant.
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2009 (4) TMI 906
Whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused?
Whether the present case is not one of those extreme cases where criminal prosecution can be quashed by the court at the very threshold?
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2009 (4) TMI 905
Issues:
1. Reversal of MODVAT credit on a CNC lathe machine.
2. Imposition of interest and penalty due to delay in reversal of credit.
3. Challenge to the levy of interest.
4. Interpretation of Rule 57U regarding admissibility of credit on capital goods.
5. Applicability of interest for delayed payment of duty.
Analysis:
1. The case involved the removal of a CNC lathe machine during preventive checks, leading to the appellants not reversing the MODVAT credit of &8377; 2,45,100/- availed on the machine. The department directed the reversal of credit, payment of interest, and proposed a penalty. The Additional Commissioner confirmed a demand of &8377; 2,02,802/- and imposed interest and penalty. The Commissioner (Appeals) upheld the order.
2. The Tribunal initially set aside the direction for levy of interest and penalty. However, the Revenue moved the High Court, which remitted the case back to the Tribunal for consideration of interest for the delayed payment period. The Tribunal, upon rehearing, found that the appellants were liable to pay interest due to the delay in reversing the credit, as per Rule 57U.
3. The Tribunal clarified that under Rule 57U, credit is not admissible on capital goods removed as such, necessitating the reversal of credit by the assessee. Even if the goods were removed by a finance company to which dues were owed, the assessee is still required to reverse the credit. The Tribunal referenced a similar case where interest was deemed payable for delayed payment of duty.
4. Given the interpretation of Rule 57U and the requirement for reversal of credit on capital goods removed as such, the Tribunal upheld the authorities' demand for interest. The Tribunal's decision was based on the principle that interest is payable for delayed payment of duty, as established in previous judgments.
5. In conclusion, the Tribunal held that the appellants were liable to pay the interest as demanded by the authorities, thereby upholding the impugned order and dismissing the appeal. This decision was made after a thorough consideration of the relevant rules and legal precedents.
This detailed analysis of the judgment provides a comprehensive overview of the issues involved and the Tribunal's reasoning behind its decision, ensuring a clear understanding of the legal complexities addressed in the case.
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2009 (4) TMI 904
Whether the High Court committed a grave error insofar it failed to take into consideration the fact that the appellants were not aware of the consequences of the death of the respondents and they had come to know thereabout only through the counsel at a much later state?
Whether the provision of Order 22 Rule 10A of the Code of Civil Procedure mandating the counsel of the deceased to duly inform the Court in regard to their clients passing away having not been complied with?
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2009 (4) TMI 903
Escapement of turnover from tax - whether the appellant-corporation could not provide any evidence in support of form F?
Held that:- In this case the appellant-corporation had furnished form F. In the said writ petition what was submitted by the appellant-corporation was that the notice for reassessment was wholly without jurisdiction and that the assessing authority could not have reopened the assessment in invoking rule 10 and rule 12(8) of the Central Sales Tax (Orissa) Rules in relation to transactions for which form F was furnished. Further, the High Court has failed to consider the challenge to the order of reassessment by the appellant- corporation on the ground that it was a case of change of opinion. Lastly, we find merit in the contention advanced on behalf of the appellant-corporation that looking to the magnitude of the matter including the demand the assessing authority ought to have given more time to the appellant-corporation for producing the relevant documents. In this case the impugned order of reassessment dated February 19, 2007 is virtually an ex parte order.
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2009 (4) TMI 902
Issues:
1. Imposition of penalty under section 10(6) of the Punjab General Sales Tax Act, 1948.
2. Justification of interest imposition under section 11D regarding deposited tax before filing returns.
Analysis:
1. Imposition of Penalty under Section 10(6):
The petitioner-dealer filed an application under section 22(1) of the Act, seeking a reference of legal questions arising from the Tribunal's order. The Assessing Authority had imposed a penalty of &8377; 2,150 under section 10(6) and interest of &8377; 18,190 under section 11D for alleged short-payment of &8377; 21,309. The petitioner-dealer contended that since no interest was payable as tax was deposited before filing the returns, the imposition of penalty under section 10(6) should not arise. The court, after considering previous judgments and the facts of the case, ruled in favor of the petitioner-dealer, stating that if no interest was payable, then the question of imposing a penalty did not stand. Consequently, the court answered question No. (i) against the Revenue and in favor of the petitioner-dealer.
2. Interest Imposition under Section 11D:
The second question pertained to the justification of interest imposition under section 11D when tax was deposited before filing the returns. The petitioner-dealer argued that a similar issue had been decided in their favor in a previous case, where it was held that interest was not payable for the period before the demand was raised. Referring to relevant judgments, including one by the Supreme Court, the court agreed with the petitioner-dealer's stance. The court noted that the tax as per the return was deposited by the petitioner-dealer, and hence, no interest could be imposed. Therefore, question No. (ii) was also answered against the Revenue and in favor of the petitioner-dealer.
In conclusion, the court ruled in favor of the petitioner-dealer on both issues, rejecting the Revenue's contentions and upholding the petitioner's arguments. The judgment clarified the legal aspects regarding penalty imposition under section 10(6) and interest imposition under section 11D, providing a favorable outcome for the petitioner-dealer based on the facts and relevant legal precedents.
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2009 (4) TMI 901
Issues:
Challenge to order directing payment of disputed tax as a pre-condition for revision petition.
Analysis:
The petitioner challenged an order by the revisional authority, requiring payment of the entire disputed tax before entertaining the revision petition. The petitioner had filed a revision petition against an assessment order under the Tamil Nadu Value Added Tax Act, 2006, along with a stay application. The impugned order stated that the revision petition would not be entertained unless the disputed tax was paid, citing section 54(4) of the Act. The petitioner approached the High Court against this order.
Section 54 of the Tamil Nadu Value Added Tax Act, 2006 allows for filing a revision against an order without appeal provisions. The procedure for filing a revision petition is detailed in sections 54(2) and 54(3), emphasizing the authority's power to examine and pass orders after an inquiry. Section 54(4) specifies that tax or other amounts should be paid as per the order being challenged, with the Deputy Commissioner having discretion to give directions on payment if sufficient security is provided.
The High Court noted that while the first respondent focused on the main provision of section 54(4), they failed to consider the proviso granting discretionary power to the Deputy Commissioner regarding payment conditions. The Court emphasized that the payment of disputed tax was not an absolute pre-condition under section 54(4), highlighting the need for the authority to exercise discretion lawfully. Consequently, the High Court allowed the writ petition, setting aside the impugned order and remitting the matter back to the first respondent for fresh consideration. The first respondent was directed to review the stay petition on its merits and issue appropriate orders within two weeks. The Court concluded by closing connected miscellaneous petitions without imposing costs.
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2009 (4) TMI 900
Whether appellants conviction for an offence relating to Section 138 of the Negotiable Instruments Act, 1881 correct?
Held that:- When the factual background of the present case is considered in the light of the principles referred to in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another [2007 (2) TMI 311 - SUPREME COURT OF INDIA] the inevitable conclusion is that the appeal is bound to succeed. The conviction as recorded cannot be maintained.
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2009 (4) TMI 899
Settlement of dispute - Arbitral proceeding - Held that:- The Arbitral Tribunal correctly held that the petitioner produced no evidence to establish that they had appointed an Engineer in writing under clause 3 of the Contract. The only reference to an Engineer is in the letter dated 29th December, 2007 averring for the first time that the letter dated 16th August, 1996 was, in fact, an Engineer's letter as per clauses 26 and 27. Significantly, this was well after the invocation of arbitration by the respondent on 11th November, 2007 and thus, is of no avail to the petitioner.
The petitioner's challenge to the award under Sections 11 and 16 of the Act must fail. No specific instances has been given, in the petitioner, as to which submission of the petitioner was not noted and in which manner the Arbitral Tribunal acted in a partial manner towards the respondent. Also uphold the decision of the Arbitral Tribunal dismissing the petitioner's application under Section 12 and 13 of the Arbitration Act.
No restriction on or order of the court by which the Arbitral Tribunal was precluded from adjudicating and deciding the dispute in respect of the bank guarantees. Since, the bank guarantees were given under the contract, which contained an arbitration agreement that applied, even as per the petitioner, to the bank guarantees, there is no error of jurisdiction in adjudication of disputes in respect of the Bank Guarantees by the Arbitral Tribunal.
The Arbitral Tribunal has rightly held that once it stood admitted by the petitioner that the material issued by it was used for its project and that there was no theft or pilferage, the petitioner could not make any claim against the respondent for excess consumption or deny the claim of the respondent for additional works which were necessitated due to site conditions and the, change in design.
Arbitral Tribunal in the present case comprised of Engineers, two of whom were appointed by the President, Institution of Engineers. Their decision to apply the Hudson Formula for calculating the damages and expenses cannot be faulted merely because they choose to apply the said formula. This objection of the petitioner thus has no merit and is therefore, rejected. The Arbitral Tribunal directed the petitioner to pay only 50% of the amount of losses and damages suffered by the respondent on account of the prolongation of the work. The objection raised by the petitioner, namely that the Arbitral Tribunal despite holding that the respondent was liable for 50% of the delay granted the entire claim, is therefore, clearly misconceived and is rejected.
In the present case, the petitioner has not been able to set out any ground on merits on which the Arbitral award merits interference from this Court except in the case of the butterfly valve and the award is modified and respondent held liable to pay ₹ 3,45,000/- instead of ₹ 2,00,000/- ordered by the Arbitral Tribunal on this claim. This amount of ₹ 3,45,000/- instead of ₹ 2,00,000/- shall be adjusted from the amount payable by the petitioner to the respondent. However, thus also allow the plea of the learned counsel for the petitioner Shri Bhat that in light of the current interest rates levy of 18% interest per annum was excessive and consequently reduce the rate of interest awarded by the Arbitral Tribunal to 12% uniformly. The present petition is accordingly dismissed with the above modifications with costs of ₹ 20,000/- in favour of the respondent.
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2009 (4) TMI 898
Appointment of arbitrator - whether any dispute exists between the parties? - Held that:- The Court without considering that whether any dispute exists between the parties, could not have appointed an Arbitrator. Therefore, the Court was not justified in appointing a Retired High Court Judge as the sole Arbitrator in the present case. Appeal allowed.
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2009 (4) TMI 897
Issues Involved:
1. Classification of "body deodorants" under the West Bengal Sales Tax Act, 1994.
2. Applicability of tax rates on body deodorants.
3. Interpretation of legislative intent regarding the classification of goods.
Issue-wise Detailed Analysis:
1. Classification of "body deodorants" under the West Bengal Sales Tax Act, 1994:
The primary issue in this case is whether "body deodorants" should be classified under entry 54(i) or 54(ii) of Notification No. 1109 FT dated April 20, 2005, under the West Bengal Sales Tax Act, 1994. Entry 54(i) includes "perfumes, depilatories, cosmetics, toilet articles and preparations (whether medicated or not) including hair cream, hair dye, hair tonic, hair conditioner and hair lotion," taxed at 20%. Entry 54(ii) includes "tooth brush, tooth paste (whether medicated or not), tooth powder (whether medicated or not) and other dentifrices, mouth washes and deodorants," taxed at 17%.
2. Applicability of tax rates on body deodorants:
The petitioner argued that body deodorants should be taxed at 17% under entry 54(ii), while the assessing authority and the Additional Commissioner of Commercial Taxes (CCT/WB) levied a 20% tax, treating body deodorants as falling under entry 54(i). The Additional CCT/WB, in his order dated December 4, 2007, concurred with the assessing authority, stating that the principle of "ejusdem generis" applies, meaning deodorants listed in entry 54(ii) are related to mouth products, thus excluding body deodorants. The Additional CCT/WB classified body deodorants as cosmetics, taxable under entry 54(i) at 20%.
3. Interpretation of legislative intent regarding the classification of goods:
The petitioner contended that the legislative intent was not to classify body deodorants as cosmetics under entry 54(i) but under entry 54(ii). They referenced the Commodity Classification and Code issued by the Directorate of Commercial Taxes, West Bengal, where cosmetics and deodorants are listed separately. The petitioner argued that if the legislature intended to tax deodorants at 20%, it would have included them with items in entry 54(i). The respondent-authorities, however, argued that body deodorants should be considered cosmetics based on definitions from the Drugs and Cosmetics Act, 1940, and Hawley's Condensed Chemical Dictionary, which describe deodorants as cosmetics.
Judgment:
The Tribunal concluded that body deodorants marketed by the petitioner should be classified as cosmetics under entry 54(i) and taxed at 20%. The Tribunal upheld the Additional CCT/WB's decision, relying on the definitions and principles of statutory interpretation, including "noscitur a sociis" and "ejusdem generis." The Tribunal found that the petitioner's argument about legislative intent and separate classification in the Commodity Code was not persuasive enough to overturn the established classification and tax rate.
Conclusion:
The Tribunal confirmed the imposition of a 20% tax on body deodorants, classifying them as cosmetics under entry 54(i) of the West Bengal Sales Tax Act, 1994. The petitioner's appeal was dismissed, and the order of the Additional CCT/WB was upheld.
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2009 (4) TMI 896
Equitable mortgage - whether any equitable mortgage was created by the third respondent or not? - Whether it is not necessary always that an original title deed alone should be deposited for creating an equitable mortgage?
Held that:- The issue as to whether any equitable mortgage was created by the third respondent or not is a question of fact to be pleaded in a suit and decided on the basis of the evidence to be adduced in the suit. Such disputed questions of fact cannot be gone into in the writ petition. Hence, we do not find any error or infirmity in the reasoning of the learned judge and accordingly, as stated above, the writ appeal fails and the same is dismissed.
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2009 (4) TMI 895
Tax, penalty, interest and penalty under section 59, penalty under section 61 of the Sales Tax Act imposed - Held that:- No substantial question of law emerges in this case because the apex court has only held that there is liability of tax upon the respondent with regard to supplied material for construction work which falls under the definition of "sale" but further it is not adjudicated by the apex court as to from which date interest or penalty can be imposed. It is settled law that any adjudication made by the apex court has prospective effect unless it is specifically otherwise directed by the court. In the judgment of Karya Palak Engineer, C.P.W.D., Bikaner [2004 (8) TMI 114 - SUPREME COURT OF INDIA] it is nowhere adjudicated by the honourable apex court that this adjudication will have retrospective effect. In this view of the matter no error has been committed by both the Deputy Commissioner (Appeals), Jodhpur and learned Tax Board, Ajmer while adjudicating the appeals. The revision petition is, therefore, bereft of merit.
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2009 (4) TMI 894
Sales tax revision - Held that:- While exercising revisional jurisdiction, scope is very limited and if any question of law arises, then, it must be formulated after mentioning the grounds. In a very casual manner, this revision petition has been filed under section 86 of the Act of 1994 having three paragraphs; and, in the fourth paragraph, questions of law have been formulated. It is very strange that in para 4, ten questions have been formulated. However, upon perusal of the whole of the revision petition including statement of facts, it is revealed that only ground is raised in para 4 of the statement of facts that the Tax Board has not appreciated the relevant provisions of law and material available on record in its proper light. For this assertion, no specific provision of law or material is pointed out by the petitioner nor any ground is raised except para 4 of the statement of fact. Therefore, no question of law arises for interference. Revision dismissed.
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2009 (4) TMI 893
Whether, on the facts and in the circumstances of the case, the Appellate Tribunal had material to hold that there is a transfer of property in goods to the petitioner from the printer and also from the petitioner to the customer so as to warrant a conclusion that there are two sales?
Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the petitioner carries on "business" and that there is no dispute about the fact?
Held that:- The findings have been affirmed by the first appellate authority with reference to the legal contentions urged by the Tribunal with reference to the findings challenged in the appeals before the Second Appellate Tribunal, which is the second appellate authority with reference to the same at paragraph No. 11, which, after recording its reasons has further concurred with the concurrent finding of fact recorded by the first appellate authority. Therefore, it cannot be said that the points answered by the Tribunal are vitiated on account of the erroneous finding for want of legal evidence on record.
We are in respectful agreement with the concurrent finding of fact recorded by the appellate authority as the same is based on materials, the accounts books and various other materials referred to in the order of the assessing officer by the Intelligence Wing of the Sales Tax Department and as the same has been rightly concurred with by the KAT, we do not find any reason whatsoever to interfere with the same. Appeal dismissed.
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2009 (4) TMI 892
Grant of an exemption under notification dated July 27, 1991 rejected - Held that:- The facts, which emerge from the material on record are that the assessee had purchased land for setting up of a new unit in the year 1993. He had completed the construction in the year 1994. The assessee had also applied for the power connection, which had been granted to him but had not been fixed.
It is also clear from the record that the assessee had indeed purchased the til oil for ₹ 2,68,800. On March 27, 1995 generators were found at the site, even by the survey report dated April 26, 1995. The fact that the generators were found at the site is also evident from the certificate dated March 29, 1995 issued by the Assistant Director, Electricity Safety Department, U.P. Government, Mathura. Thus clearly the assessee has been able to establish his case that the "date of production" as stated was prior to March 31, 1995. The provisions of section 4A, Explanation (3) thus stood satisfied by the assessee.
Thus the view as taken by the Tribunal with regard to the "actual date of production " is clearly a mistaken view and deserves to be struck down and the assessee is entitled to the benefit of Notification No. 1093 dated July 27, 1991. Revision allowed.
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2009 (4) TMI 891
matter remanded - ascertain as to what was the number of woollen goods/garments, which are to be taxed as an unclassified item - Whether, in view of the facts and circumstances of the case, the Trade Tax Tribunal was justified in holding that the pullovers and cardigans made out of acrylic and nylon which were sold by the applicant are different and ready made garments of wool?
Held that:- It is difficult to accept the contention of the learned counsel for the assessee that even though woollen garments are specifically excluded from the entries whose benefits he seeks, simply because they are garments they should be treated to be covered under entry No. 4 of Notification dated September 7, 1981. Wool is completely different from cotton. The arguments of learned counsel for the assessee are, therefore, rejected. The view taken by the Tribunal is correct. Decided in favour of the Revenue and against the assessee
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2009 (4) TMI 890
No examination of the matter in its entirety and objectivity - whether the relevant material on record has altogether been ignored?
Held that:- No error has been committed by both the authorities below while setting aside the order passed by the assessing authority because, at the time of physical verification, bill and bilty of 10 electric motors were produced for perusal and according to proviso to rule 62A(3), for the goods which are purchased for production there was no requirement of declaration form ST-18A. In this view of the matter, it is obvious from the facts of the present case that electric motors were purchased and were in transit for the purpose of generating electricity for manufacturing thread, therefore, there is no illegality in the orders impugned which may give rise to any question of law to be decided by this court. Moreover, the question of mens rea is totally irrelevant in this case.
Thus both the authorities below set aside the order passed by the assessing authority for the reason that goods purchased were required by the respondent dealer for generating electricity to manufacture thread and there is exemption provided under proviso to rule 62A(3), therefore, in this matter there was no requirement of declaration form ST-18A. Tax revision dismissed.
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2009 (4) TMI 889
Incorrect exemption claimed under section 5(3) - Whether the action of the Tribunal in granting the relief of exemption of additional surcharge is correct or not?
Held that:- As the notification was not cancelled, it is very clear that the Government did not want to cancel the benefit. The other contention of the Government Pleader is that the notification is qualified with reference to the city of Madras and other peripheral areas, and due to be cancelled when a particular provision has been taken away from the statute. We are not able to approve the argument of the learned Government Pleader. Even in the reintroduced section, there is no much difference when compared to the earlier section. De hors the deletion and re-introduction of the section, unless the notification issued by the Government for which the Government has every power is cancelled as per law, the benefit of the exemption granted by that notification has to be extended to the assessee.
No illegality or irregularity in the order of the Tribunal.
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