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Showing 221 to 240 of 1288 Records
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2014 (9) TMI 1074
Confiscation of goods - rubber sheets - imposition of redemption fine and penalty - classification of micro cellular rubber sheets - applicability of exemption Notification No. 80/95-CE dated 16.03.1005 - Chapter Note 4(a) of Chapter 40 of the Central Excise Tariff - drawing of samples - Held that: - the issue of classification of micro cellular rubber sheets manufactured by another company M/s Popular Rubber Industries vs. CCE, Delhi-I [2004 (2) TMI 422 - CESTAT, NEW DELHI] stands decided by Hon’ble CESTAT. The facts of the present case are similar to those obtaining in the case of Popular Rubber Industries, where it was held that the material sent for test was of finished product which contained fillers, plasticisers, extenders and other agents, the presence of which is not permitted for the purpose of test as per Note 4(a) to Chapter 40. Explanatory Notes of HSN also provides that for the purpose of the test required by Note 4, a sample of the unsaturated synthetic substance or a substance of a kind specified in Note 4(c) (in the condition of unvulcanised raw material) is to be vulcanised with sulphur and then subjected to elongation and recovery test. Accordingly, in the case of substance containing materials not permitted by Note 4. the test is to be carried out on a sample which does not contain such materials or from which such materials have been removed. The explanatory notes also mentions that in the case of vulcanised rubber articles, which cannot be tested as such, it is necessary to obtain a sample of the unvulcanised raw material from which the articles are made, in order to perform the test. The classification of the impugned product is to be determined on the basis of test report only and as the proper sample has not been sent for the purpose of test, the impugned classification cannot be sustained and matter has to be remanded - in the present appeal also, while deciding the case denovo the Commissioner has relied upon the very same sample which was drawn out of the finished product and not drawn in accordance with the requirements of Chapter note 4(a) referred.
Issue of applicability of Notification No. 18/95-CE dated 16.03.1995 - Held that: - an exemption notification is required to be interpreted strictly and the onus is on the assessee who claims the benefit to establish that they satisfy the condition as specified therein. This very issue in respect of the impugned goods has however been decided by CESTAT in the case of Pololight Industries Ltd. vs. CCE, Vapi [2009 (2) TMI 493 - CESTAT, AHMEDABAD], where it was held that there is no evidence produced on record by the Revenue to establish that the sheets cleared by the appellant were actually put to some other uses, other than the one specified against the entry. The Revenue’s entire case is based upon only one fact that the appellant have not been able to show that the sheets have actually been used for the specified purposes - the product for domestic clearance has to be held as classifiable under heading 4008.21 - the appellant’s are eligible for the benefit of Notification No. 18/95-CE dated 16.03.1995.
Appeal allowed - decided in favor of appellant-assessee.
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2014 (9) TMI 1073
Unexplained cash deposits in the Saving Bank - Held that:- AO in his remand report could not bring out any fact that the cash withdrawn from Saving Bank Account and partnership overdraft account was used for other purpose anywhere else then, merely because there was a time gap between withdrawal of cash and its further deposit to the bank account, the amount can not be treated as income from undisclosed sources u/s 69 of the Act in the hands of the assessee.AO rejected the explanation of the assessee on hyper technical basis which is not acceptable.
From the decisions relied by the Ld. D.R. we are of the view that the facts of the present case are clearly distinguishable as in the present case the explanation offered by the assessee is reliable and acceptable on the touchstone of the prudence of an ordinary man but merely on the ground that the act of assessee created huge interest liability on partnership firm does not enable revenue authorities to consider the cash withdrawn and it deposit to same bank account after a substantial gap of time, as unexplained income u/s 69 A of the Act. Hence, we reach to a conclusion that the AO made addition without any legal and justified reason which was rightly deleted by the CIT(A). - Decided in favour of assessee
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2014 (9) TMI 1072
Allowance of expenditure under section 35D - Held that:- The issue was restored to the file of Ld. CIT(A) in earlier years for determining afresh on the basis of the record for A.Y. 2006-07 being the first year of the claim. Since this is a consequential claim and matters are pending before the Ld. CIT(A) in earlier years, we restore the issue to the file of Ld. CIT(A) to consider it afresh in the light of findings given for A.Y. 2006-07.
Allowance of expenditure on buy back of equity shares - Held that:- In the appellant's case, the expenditure incurred on buy back of shares was not capital expenditure as it was only incurred wholly and exclusively for the purpose of carrying on its business as enunciated u/s 37 (1) of the Act and has to be treated as business expenditure
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2014 (9) TMI 1071
Assessment u/s 153A - validity of additions made - Held that:- The underlying purpose of making assessment of total income u/s 153A is to assess income which is not disclosed or would not have been disclosed. Second proviso to section 153A providing for abatement of assessment or reassessment, which is applicable only in proceedings pending on the date of search or requisition for the reason that there cannot be two assessments for a single assessment year. See CIT Vs. M/s Murali Agro Products vide [2010 (10) TMI 1052 - BOMBAY HIGH COURT].
It is also a settled position of law that reassessment is permitted in an assessment u/s 153A, only if incriminating material is found during the course of search. In the case in hand, the question is whether any incriminating material has been found in the course of search relating to the additions made. The Revenue could not show any incriminating material found in the course of search which would warrant the impugned additions. Therefore, we are of the considered opinion that there is no justification for the authorities below to consider the issues in the assessment passed u/s 153A. In view of that matter, both the additions made in the impugned assessment order are not justified. - Decided in favour of assessee.
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2014 (9) TMI 1070
Validity of the proceedings initiated u/s 153A - Held that:- The surrender no doubt was not acted upon by the assessee, but the said fact cannot lead us from the irresistible conclusion that incriminating material was unearthed during search. No material has been placed before us to negate the aforesaid factual aspect as well as to support the claims of AR that the admission before the Revenue was not valid and hit by duress and coercion. Before we conclude this issue, we consider it appropriate to note that the ld AR, had also stated that no material Per-se was found pertaining to the year under consideration. However, this argument also does not hold any water because once Section 153A is triggered on account of unearthing of incriminating material during search, the AO is empowered to compute the total income for six assessment year prior to the year of search. There are no fetters or limitation under the statute, so as to curtail the jurisdiction of the AO.
G.P. addition - Held that:- Since the AO for subsequent Assessment Year’s has estimated GP rate of 15%, we do not find any reason as to uphold the GP rate of 20% for this Assessment Year. So we restrict the GP rate at 15% for this Assessment Year and direct the AO to compute the trading addition by adopting the sales at 1 crore and GP rate at 15% for this Assessment Year. We thus allow the ground raised by the revenue and reject the ground raised by the assessee on this behalf.
Addition u/s 41(1) - Held that:- Since we have already upheld the rejection of books of account and estimated the income for the instant year, there is no basis to make any further addition on the basis of entries found in the books of accounts. Even otherwise we may add here that the said addition is contrary to the judgment of Apex Court in the case of Commissioner of Income-tax Vs. Sugauli Sugar Works (P.) Ltd. (1999 (2) TMI 5 - SUPREME Court) .
Addition of interest payment held to be not for the purpose of business - Held that:- We dismiss this ground raised by the revenue as we have already estimated the income for the instant year and thus no separate disallowance is warranted so this Ground of revenue is dismissed.
Unexplained investment in Farm House - Held that:- The Hon’ble Delhi High Court in the case of CIT Vs. Sakuntla Devi [2009 (3) TMI 5 - DELHI HIGH COURT] held that where department has failed to collect any information or material to show that any consideration above and beyond the stated consideration has changed hands then it would be legally impermissible to draw adverse interference against the assessee. Following the above position, we sustain the addition of ₹ 6,65,000/- out of total investment estimated by the AO of ₹ 91,65,000/-. As such addition of ₹ 1,41,250/- is sustained in the hands of the assessee and the balance addition against the assessee is deleted.
Unexplained cash-credit - Held that:- We find no infirmity in the conclusion made by the ld CIT(A) to the extent that even the ld counsel in the course of hearing could not demonstrate that the credit was confirmed by the creditor namely Mrs. Alka Bansal who claimed to be the proprietor of M/s Anand Jute company. A copy of the account signed by an accountant, has been admittedly placed on record before us as well as the ld CIT(A). We note that the amount of ₹ 2 lakh has been received by Account Payee cheque and interest thereon has been paid to the creditor. Further PAN number of the creditor has also been furnished. In the said circumstances, we are of the opinion that merely because confirmation has not been filed separately from the creditor itself, would be amounting to deny the claim on hyper technical ground, when other facts are not refuted by the department even in the course of hearing. In such circumstances we feel it appropriate to allow the claim of the assessee and delete the addition of ₹ 2 lakhs.
Un-explained creditors - Held that:- CIT(A) has held that there is cessation of liability, on the ground that in respect of another creditor M/s. Royal Packaging the said sum has been offered as income. However we are of the opinion that the cessation of liability in respect of another creditor cannot be a ground or basis to assume cessation of liability in respect to this creditor we therefore delete the addition.
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2014 (9) TMI 1069
Revision u/s 11(1) of U.P. Trade Tax Act, 1948 - maintainability - procedure for filing revision is prescribed in Chapter 27 of the High Court Rules - Rules 1 to 13 - Rule 5 of Chapter 27 of the High Court Rules contemplates filing of an affidavit of service of the copy of application, which is being filed in this Court. If the revision is preferred by assessee, he shall serve copy of revision upon learned Standing Counsel and file an affidavit of service giving facts as stated in Rule 5(1) and if revision is preferred by the Revenue i.e. Commissioner of Trade Tax, he shall ensure service of revision upon assessee and file an affidavit of service in the same manner - In case no such affidavit is filed and assessee is not served by Commissioner of Trade Tax, meaning thereby there is no notice or opportunity to the assessee and revision has not been filed in the manner prescribed in the Rules.
It is true that revision filed by Revenue, may not be dismissed for technical reasons, but where service has not been effected upon assessee for several years all together and Commissioner of Trade Tax apparently has failed to comply with statutory requirement of filing affidavit of service, this Court finds no justification, still to continue with said revision to remain pending and give further opportunity to Revenue, after such a long time.
This revision was filed in 2010 and till date affidavit of service has not been filed. In my view, it is fit case where this Court must reject revision having not been filed in accordance with rules and for non-compliance of requirement of Chapter 27 Rule 5(2) of High Court Rules - revision dismissed - decided against revisionist.
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2014 (9) TMI 1068
Reopening of the assessment - applicability of provisions of section 50C - Held that:- Section 50C was not applicable to the case of the assessee during the relevant period as the sale agreement in question was unregistered document and was not assessed by the Stamp Valuation Authorities. Hence, the reopening of the assessment on the ground of applicability of section 50C was itself bad in law. We accordingly set aside the order of the AO passed in reopened assessment proceedings under section 147 and restore the original assessment order dated 08.12.2008 under section 143(3) of the Act. - Decided n favour of assessee
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2014 (9) TMI 1067
Treatment to gains from share transaction - capital gain or business income - Held that:- It is seen that the appellant has consistently been showing her shares as investments and the same has been accepted as such by the department in earlier years and the Assessing Officer has not brought in any fresh evidence in his Assessment Order for the present year to the contrary. He has simply referred to the magnitude of share transaction and come to his own conclusions about the intentions of the appellant. The detailed evidences and write up given by the appellant in support her arguments, substantiate her claim of being an investor. It is also clear that the assertion that she is an investor can only be challenged on the basis of her own records and transactions which could indicate that it is actually doing trading business. This is not there in the appellant’s case and the A.O. has failed to do so other than making a longwinding analysis of the guidelines laid out in CBDT Circular No.4/2007.
Contention of the appellant is accepted and the income from share transactions treated as Capital Gains.
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2014 (9) TMI 1066
Interest demand u/s 201(1A) - Held that:- Interest is of compensatory nature and if recipient of the income has no tax liability then there cannot be any liability on account of interest u/s 201 (1A). If the recipient was not having any tax liability then interest cannot be charged u/s 201 (1A). However, since this information was not available with the Assessing Officer, we set aside the order of the CIT(A) and remit the matter back to the file of Assessing Officer to verify whether the recipient has any chargeable income or not and then decide the issue in the light of our observations made on the basis of the decision of Allahabad Bank V ITO, (2014 (6) TMI 672 - ITAT AGRA).
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2014 (9) TMI 1065
Denial of deduction u/s 80IA in respect of infrastructure facility developed for M/s Sardar Sarovar Narmada Nigam Limited (SSNNL) - Revenue contends that assessee has entered into a works contract agreement with SSNNL which is not an entity specified in sub-clause (b) of section 80IA(4)(i) - Held that:- The tests laid down by the Hon’ble Supreme Court in the case of Som Prakash Rekhi (supra) are fulfilled in the present case and it would be appropriate to deduce that SSNNL is an instrumentality or an agency of the State. Therefore, SSNNL is to be understood as an entity akin to those specified in sub-clause (b) of clause (i) to sub-section (4) of section 80IA of the Act. Therefore, the objection of the Revenue that SSNNL was a company incorporated under the provisions of the Companies Act, 1956 and is therefore outside the purview of section 80IA(4)(i) of the Act is unfounded. In-fact, the Hon’ble Supreme Court in the case of Som Prakash Rekhi (1980 (11) TMI 113 - SUPREME COURT OF INDIA) specifically observed that merely because an entity is created under a statute and not created by a statute is not an important criteria. The test relating to the purpose, State control and functions performed are more important and determinative of the issue. Such tests, in our view, are clearly applicable in the case of SSNNL, and it is to be understood as an entity specified in section 80IA(4)(i)(b) of the Act.In the light of the aforesaid discussion, in our view, SSNNL being a mere extended arm of the Government of Gujarat carrying out governmental functions can be understood as an entity qualifying for consideration u/s 80IA(4)(i)(b) of the Act. The objection of the Revenue in this context is thus rejected.
Whether assessee was not a ‘developer’ so as to be eligible for deduction u/s 80IA(4) of the Act? - Held that:- . In the present case, the assessee has used own-developed technology and its own resources to conceptualize, design, erect, commission, test and operate the ‘Saurashtra Branch Canal Pumping Scheme’. Therefore, in our view, assessee is to be understood as a ‘developer’, and distinct from a ‘contractor’ qua the impugned contract awarded by SSNNL. The judgement of the Hon’ble Bombay High Court in the case of CIT vs. ABG Heavy Industries Ltd., (2010 (2) TMI 108 - BOMBAY HIGH COURT ), clearly supports the plea of the assessee of being a developer.
Nojustification to deny the claim of deduction u/s 80IA(4) of the Act merely because the cost of the project executed by the assessee was not fully funded by the assessee itself.n view of the aforesaid discussion, we therefore hold that assessee is eligible for the claim of deduction u/s 80IA of the Act amounting to ₹ 40,02,10,981/- in respect of the profits derived from development of infrastructure facility for SSNNL. The order of the CIT(A) is set-aside and the Assessing Officer is directed to allow the deduction.
Disallowance of Provision for Pension scheme for employees - Held that:- The Hon’ble Supreme Court in the case of Bharat Earth Movers vs. CIT, (2000 (8) TMI 4 - SUPREME Court) has held that the liability was not a contingent liability. In this view of the matter, we are of the opinion that this issue is required to be remitted back to the file of the Assessing Officer for ascertaining the reasonableness of the provision made by the company for meeting the incremental liability of this year incurred by it under pension scheme; proportionate with the entitlement earned by the employees in question, subject to any ceiling if any prescribed in the said scheme as applicable on the relevant period. The Assessing Officer is directed to decide the issue afresh after providing adequate opportunity of being heard to the assessee. Thus, the said Ground of Appeal is allowed for statistical purposes.
Restricting the deduction u/s 80IA of the Act for the Godavari Lift Irrigation Scheme developed by the assessee for the Government of Andhra Pradesh - Held that:- CIT(A) made no mistake in disregarding the action of the Assessing Officer scaling down the deduction u/s 80IA of the Act to the extent of ₹ 6,63,61,181/- in respect of profits earned from Godavari project. In so far as the assessee’s eligibility for the claim of deduction u/s 80IA of the Act with respect to the Godavari project is concerned there is no dispute. We are in agreement with the CIT(A) that the profit shown by the assessee in its books of account relating to the Godavari project has been disregarded by the Assessing Officer on mere conjectures and surmises. No doubt, the profit ratio in case of the Godavari project is higher in comparison to other projects undertaken by the assessee in different assessment years. So however, such a difference can only be a basis to further verify the factual aspects, but the difference in profit-ratio by itself, cannot be a ground to disbelieve the same. The Assessing Officer has not brought out any cogent material or evidence to say that the profits declared by the assessee, based on the audited books of account suffer from any infirmity. Therefore, action of the CIT(A) deleting the disallowance of ₹ 6,63,61,181/- out of deduction u/s 80IA of the Act is hereby affirmed.
Allowance of Provision for warranty - Held that:- It was a common point between the parties that the Provision for warranty cannot be considered as a contingent liability following the judgement of the Hon’ble Supreme Court in the case of Rotork Control India P. Ltd. (2009 (5) TMI 16 - SUPREME COURT OF INDIA ). The CIT(A), in our view, has correctly decided the issue in the light of the judgement of the Hon’ble Supreme Court, which we hereby affirm
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2014 (9) TMI 1064
Furnishing of documents - Held that:- No prejudice would be caused to Respondent No.2 if these documents are supplied. On the contrary, if these documents are supplied in time there wont be further delay in concluding the proceedings after giving a reasonable opportunity to the Petitioner. We must note here that the Petitioner has not pressed prayer clause (a) and (b)(i).
Petitioner has given a list of documents which, according to them, have not been disclosed to them and the said list of documents is annexed at Exhibit-A to the affidavit of the Petitioner which is at running page 853. Mr. De Vitre, the learned Senior Counsel for Respondent Nos.2 to 4, after referring to the said list at Exhibit-A, has submitted that documents at Serial No.2, 3 & 6 would be supplied and the document at Serial No.5 has already been supplied. He submitted that documents at Serial No.7 are available with the Petitioner. He further submitted that documents at Serial Nos 8, 9, 10 and 11 of the said list are based on facts. 23. We are, therefore, of the view that Respondent No.2 shall furnish to the Petitioner the documents at Serial Nos. 2, 3, & 6 which are mentioned in Exhibit-A referred to above within two weeks from today. Further proceedings to be commenced upon documents being supplied within two weeks thereafter. Thereafter, additional explanation may be furnished by the Petitioner.
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2014 (9) TMI 1063
Sale of pre-packaged software - royalty or fee for technical services - whether not taxable as business income? - Held that:- In the present case, Double Taxation Avoidance Agreement between India and the United States of America is applicable and to construe royalty conditions stipulated in the DTAA have to be satisfied. The question raised, it is accepted, is covered by the decision of this Court in DIT Vs. Infrasoft Limited [2013 (11) TMI 1382 - DELHI HIGH COURT ] wherein held that the right to make a backup copy purely as a temporary protection against loss, destruction or damage does not amount to acquiring a copyright in the software - What has been transferred is not copyright or the right to use copyright but a limited right to use the copyrighted material and does not give rise to any royalty income - The consideration received on grant of licences for use of software is not royalty within the meaning of Article 12(3) of the Double Taxation Avoidance Agreement between India and the United States of America – Decided against Revenue.
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2014 (9) TMI 1062
Application recalling the order of the ITAT - Held that:- We find that the Revenue has removed the requisite defects/deficiencies pointed out by the Tribunal and we are of the view that it is a fit case for recall of the order of the Tribunal. Therefore, in the interest of justice, we recall the order of the Tribunal and fix the main appeal for hearing on 20.10.2014. The Registry is directed to issue notices to the parties accordingly.
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2014 (9) TMI 1061
Disallowance of expenses on insurance, depreciation, interest on finance and car expenses - CIT(A) deleted the addition - Held that:- CIT(A) deleted such addition by relying on the Tribunal order passed in assessee’s own case for AY 2000-01. The ld. DR could not bring on record any material to indicate that there was any fallacy in such order or in the subsequent years such order has not been followed. Respectfully following the precedent, we approve the view taken by the ld. CIT(A) on this issue.- Decided against revenue
Disallowance of interest @ 12% on such interest free loans and advances to the related parties and others - Held that:- the impugned order that interest free loans were given to the persons whose properties were used by the assessee for showrooms and godowns, on which no rent was paid. It can be seen from the impugned order that the AO himself, while passing order u/s 143(3) for the AY 2009-10, accepted the assessee’s submissions on this score and did not make any such addition. When interest free loans were given to the parties from whom the assessee had taken premises for its business purpose without paying any rent, the notional interest on such loans can be considered as quid pro quo of rent. Since the AO has himself accepted the assessee’s case, in his order for AY 2009-10, we hold that no interference can be made in the impugned order on this issue - Decided against revenue
Addition on account of conversion expenses - Held that:- The assessee was to use this property of some third person for business purpose and the same was not possible unless it was so converted, the conversion charges in such circumstances could not have been considered as a capital expenditure. The case is not even hit by Expl. 1 to sec. 32(1) inasmuch as payment of such conversion charges cannot be considered as any capital expenditure ‘on the construction of any structure or doing of any work in or in relation to, and by way of renovation or extension of, or improvement to, the building’. We, therefore, hold that such a payment cannot be considered as capital expenditure.- Decided against revenue
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2014 (9) TMI 1060
Deduction u/s 10A - Held that:- We find that after discussing the entire issue, the ultimate finding and direction of the Tribunal is to remand the same to the Assessing Officer. The reasoning at page 73 of the paper book in para24 of the order passed by the Tribunal, which is a common order for both assessment years, we do not find that the Tribunal has decided the question. The Tribunal has merely invited the attention of all concerned to various aspects and which require a factual clarity. In these circumstances, the order of the Tribunal setting aside the order on the question or issue and restoring it to the file of the Assessing Officer does not raise any substantial question of law. The Appeal is devoid of merits. The Assessing Officer must now implement the order of the Tribunal and in accordance with law.
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2014 (9) TMI 1059
Set off of addition made u/s. 68 against the unabsorbed depreciation loss - CIT(A) observed that brought forward depreciation can be set off against income under any other head other than business in subsequent years - Held that:- In view of the decision of CIT Vs. D.P. Sandu Bros. Chembur (P) Ltd. [2005 (1) TMI 13 - SUPREME Court]the amount which has been deemed as income u/s. 68 is assessable as income from other sources and because of the same, it forms part of the total income of the assessee.
It is not in dispute that brought forward unabsorbed depreciation can be set off against the income which is assessable under the head ‘income from other sources’. We, therefore, do not find any error in the order of the Commissioner of Income Tax (Appeals). It is confirmed. - Decided against revenue
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2014 (9) TMI 1058
Liability of service tax - Maintainability of appeal before the High Court - whether the two units of the assessee i.e. SEZ unit and DTA units are one or separate legal entity - SEZ units to carry out work in-house for the units located in Domestic Tariff Area (DTA) of L & T Ltd. - Held that:- Since such question has not direct relation with the determination of rate of service tax or value of services, it is well within the bounds of jurisdiction of this court to adjudicate the matter. The decision of this court in the case of Ruchi Soya Industries Limited v. Union of India [2014 (12) TMI 310 - GUJARAT HIGH COURT] would, therefore, be squarely applicable to the facts of the present case. The contention that the appeals are not maintainable, therefore, does not merit acceptance.
The first question formulated by the court is accordingly answered in favour of the revenue and against the assessee. It is, accordingly, held that against the impugned order passed by the Appellate Tribunal, appeal would lie before this court under section 35G of the Central Excise Act, 1944.
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2014 (9) TMI 1057
Broken Period interest - Held that:- Tribunal followed the judgment of this Court in State Bank of Hyderabad v. Commissioner of Income Tax (1984 (7) TMI 66 - ANDHRA PRADESH High Court) and held that it is an allowable deduction.
Deduction towards staff fraud - Held that:- Tribunal is correct in deleting the disallowance made by the Assessing Officer in respect of the expenditure claimed on the provision for staff frauds as an allowable business expenditure.
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2014 (9) TMI 1056
100% EOU - goods cleared in DTA to its own unit - stock transfer - Demand of SAD - Held that:- the ratio of the decision of this Bench in the case of M/s Micro Inks Vs. CCE, Daman [2014 (2) TMI 207 - CESTAT AHMEDABAD] squarely settles the law in so far as this point. Therefore, the demand of SAD on goods cleared to its own DTA Unit does not survive, accordingly, we do not find any merit in appeal of the revenue.
Differential demand of CVD and imposition of penalty - Invokation of extended period of limitation - Held that:- as we find no allegations for demand has been stated either in the show cause notice nor there are any reasoning in the impugned orders for confirmation of such demand, we are of the considered view that such demand cannot be confirmed as it is not in accordance with law. As regard plea of revenue neutrality raised by the appellant, we find strong force in the contentions as there is no dispute that clearances were made by M/s STI to their own DTA Unit and the credit of SAD and CVD was available to the DTA Unit, hence the entire issue is revenue neutral. In such case it cannot be said that there has been intentional evasion of payment of duty by the appellant-assessee.
It is found that the goods were cleared on invoices indicating all the particulars and we do not find any deliberate act on the part of the assessee to evade payment of duty. We are of the view that the demands raised by invoking extended period of limitation on this count are not invokable. Therefore, the demand of SAD and CVD is unsustainable. However in respect of demand of CVD, based upon our above findings we hold that only the demand falling under normal period of limitation is sustainable, we hold it so. Since the most of the demand is set aside, having held that there was no intention to evade duty, we find that penalties imposed are unwarranted and they are set aside. Appeals disposed of
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2014 (9) TMI 1055
Pre-deposit - Whether the 1/3 of the amount is to be deposited for hearing the appeal or there is a change in circumstances after 01.05.2011 - Coaching classes conducted by the appellants to enable the students studying in intermediate classes to appear for entrance exams - Whether liable to service tax under the category of Commercial Training or Coaching or not - period involved is April 2011 to March 2012 - Held that:- while prima facie, appellant may be liable to tax, question as to what are the components which go into the intermediate course and what are the components of fee that can be attributed to Commercial Training or Coaching requires a very detailed consideration. Therefore even if we hold that the service tax is liable, there would still be dispute about valuation and further even the liability itself the appellants have not accepted and are challenging the same. Appellants view is that intermediate course is the main course and Commercial Coaching is incidental. Under these circumstances, we consider that if the appellant deposits an amount of ₹ 6 crores within 8 weeks and report compliance, that would be sufficient for hearing the appeal. Accordingly the appellant is directed to deposit an amount of ₹ 6 crores (Rupees Six Crores only) and report compliance on 16.12.2014. - Requirement of pre-deposit of balance dues is waived and stay against recovery is granted.
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