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Showing 301 to 320 of 1051 Records
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2013 (1) TMI 763
Issues Involved:
The judgment deals with the admission of additional evidences by the Ld. CIT(A) in violation of Rule 46A of Income Tax Rules 1962.
Admission of Additional Evidences:
The revenue filed six appeals against a consolidated order, objecting to the admission of additional evidences by the Ld. CIT(A) without following the statutory procedure of Rule 46A. The AO had made various additions to the assessments under consideration, citing non-compliance by the assessee. The Ld. CIT(A) admitted the additional evidences after receiving a report from the AO stating that the assessee was prevented by sufficient cause from producing the evidences during the assessment proceedings. The Ld. CIT(A) passed a speaking order for the admission of additional evidences based on the remand report filed by the AO, leading to the dismissal of the revenue's appeals.
Compliance with Rule 46A:
The judgment emphasized that the admission of additional evidences by the Ld. CIT(A) was not in violation of Rule 46A. It was noted that the circumstances existed where the assessee was prevented from producing relevant evidences during the assessment proceedings, justifying the admission of additional evidences. The Ld. CIT(A) followed the requirements of Rule 46A by giving the AO an opportunity to examine the evidences, leading to the conclusion that there was no violation of the rule. Consequently, all the departmental appeals were dismissed.
Conclusion:
The judgment focused on the procedural aspect of admitting additional evidences under Rule 46A, highlighting the importance of justifying circumstances for such admission. The decision was based on the AO's report and the Ld. CIT(A)'s compliance with the rule, ultimately resulting in the dismissal of the revenue's appeals.
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2013 (1) TMI 762
Issues involved: Stay petitions for waiver of pre-deposit of duty demand.
Summary:
The issue in this case pertains to the cenvat credit availed by the appellant for service tax paid by the service provider for canteen services. The adjudicating authority initially ruled in favor of the appellant, but the first appellate authority reversed this decision. The issue has been settled by the Hon'ble High Court of Mumbai and the Larger Bench decision of the Tribunal. The appellant's chartered accountant certified that canteen expenses were included in the employees' cost, which the first appellate authority questioned. However, the certification by a competent professional cannot be doubted without contrary evidence. Consequently, the appellant has established a prima facie case for the waiver of pre-deposit, and the applications for waiver are allowed with recovery stayed until the disposal of appeals.
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2013 (1) TMI 761
Disallowance of commission expenses - disallowance of depreciation on tangible assets - Held that:- it was not open to the department to determine the expenditure the assessee - As per the decision of CIT, Andhra Pradesh Vs. Dhanrajgirji Raja Narasinghirji [91 ITR 544] - books of accounts were maintained by the assessee - merely because in the subsequent year more expenses are incurred by the assessee disallowance was not justified - decided in favor of assessee
Held that:- As per the tax appeal No. 509 of 2012 - no question of law for onsideration arises and the same is dismissed
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2013 (1) TMI 760
Issues involved: Application for waiver of pre-deposit of service tax, penalty, and interest u/s service tax laws.
Summary:
The applicant filed an application seeking waiver of pre-deposit of service tax, penalty, and interest amounting to Rs. 7,48,822. The impugned order revealed that the applicant was involved in providing services categorized under Man-power Recruitment or Supply Agency Service. The applicant claimed they were developing software as per instructions from M/s. Infosys Technologies Ltd., not supplying manpower. However, the Commissioner (Appeals) heavily relied on a previous Tribunal decision related to a similar case. The applicant failed to provide evidence supporting their claim of supplying software, as billing was based on the manpower provided to M/s. ITL, working under their supervision. This indicated a prima facie case of supplying manpower rather than software. Consequently, the applicant was directed to pre-deposit Rs. 3 lakhs within six weeks. Upon compliance with this directive, the pre-deposit of the remaining amount was waived, and recovery stayed during the appeal process. Compliance was to be reported by 26.02.2013.
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2013 (1) TMI 759
Issues involved:
The issues involved in this case are the condonation of delay in filing an appeal under Section 35G of the Central Excise Act, 1944 and the validity of the reasons provided for the delay.
Condonation of Delay:
The appellant, a Joint Sector Company, filed an appeal before the Tribunal after a delay of 1035 days, seeking condonation of delay due to the closure of the factory in 2006 and the departure of the Senior General Manager responsible for Central Excise matters. The Tribunal was urged to consider the delay due to these circumstances. The opposing party argued that no sufficient cause was demonstrated for the delay, emphasizing that the appeal was filed by a different individual than the one mentioned in the explanation.
Decision and Reasoning:
The High Court acknowledged the significant delay in filing the appeal and noted that the explanation provided was not entirely satisfactory. However, considering the peculiar circumstances, including the closure of the factory and substantial financial losses suffered, the Court deemed it in the interest of justice to allow the matter to be heard on its merits by the Tribunal. The Court referenced the flexibility of the term "sufficient cause" under Section 5 of the Limitation Act, highlighting the need to serve the ends of justice, especially when the State is involved. Consequently, the High Court set aside the previous order and directed the Tribunal to proceed with the case on its merits in accordance with the law.
Conclusion:
The High Court's decision to set aside the order and instruct the Tribunal to reconsider the case on its merits showcases a balancing act between the strict application of limitations and the pursuit of justice, particularly in cases involving government entities and public interest. The case highlights the importance of considering unique circumstances and the overarching goal of serving justice while interpreting legal provisions.
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2013 (1) TMI 758
Principle of Consistency - Receipt of license fee towards canteen and staff quarters rent was chargeable under the head “Income from business" by AO in previous years. It was contended that in the present year, it should be taxed accordingly as per consistency principle - HELD THAT : - It cannot be held that if a mistake is committed by the AO in earlier years, the same should be perpetuated. Thus, this rental income is taxable under the head income from house property.
Repairs and Insurance of Machinery u/s 31(i) - CIT(A) deleted the disallowance made by the AO being the expenses of reconditioning of body and engine expenses. It was contended that the decision was in favour of assessee in previous assessment years. HELD THAT : - Expenditure had been incurred to “preserve and maintain” an already existing asset, and the object of the expenditure was not to bring a new asset into existence or to obtain a new advantage. CIT (A)'s decision was upheld.
Decision in the cases of COMMISSIONER OF INCOME-TAX VERSUS SARAVANA SPINNING MILLS P. LTD. [2007 (8) TMI 16 - SUPREME COURT] and COMMISSIONER OF INCOME TAX VERSUS MIHIR TEXTILES LTD. [2008 (5) TMI 282 - GUJARAT HIGH COURT], relied upon.
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2013 (1) TMI 757
The High Court of Gauhati issued an order directing that the demand for excise duties against the petitioner should not be enforced until the Tribunal passes orders on the stay application. The petitioner, a Central Government Undertaking, had taken necessary steps for appeal, and the delay in hearing was beyond their control. The Court emphasized the importance of not rendering the statutory remedy of appeal futile.
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2013 (1) TMI 756
Disallowance of deduction u/s 48(i) - amount paid to 3 nieces towards settlement of their interest in the property - Held that:- Considering the decision of Ashok SOI vs. CIT [2004 (10) TMI 34 - DELHI High Court] for the proposition that when an assessee paid certain amounts to someone to settle the claims, who had no right, title or interest in the properties in question, they cannot be considered to have been paid wholly and exclusively in connection with the transfer of property and the amount cannot be claimed as deduction u/s 48(i) of the Act. The ratio is applicable in the instance case as the three nieces to whom the assessee had paid an amount of ₹ 15 lacs did not have any legal claim over the property and therefore, the amount paid to them cannot be said to have been made in connection with transfer of the property. The decision relied upon by the assessee in the case of CIT vs. C.V. Soundararajan [1983 (8) TMI 14 - MADRAS High Court] has no application as there is no relinquishment of any right for which the amount is claimed to have been paid. Therefore, we are of the considered opinion that the decision of CIT (A) in upholding the disallowance made by the AO does not call for any interference. - Decided against assessee.
Addition made by AO u/s 69 - Held that:- As extracted from the orders of the CIT(A) and AO provide that it is the assessee’s own submission that the sum of ₹ 20 lakhs was paid in cash and the same in support of his claim of deduction u/s 54 of the Act. Agreement to sale is a valid document and the assertions of the parties relating to cash payment of ₹ 20 lakhs is true considering their signatures in the presence of the witness. We are in agreement with the views of the CIT(A)/AO and the contents of the clause relating to manner of payment have to be either correct or incorrect and they cannot be partly correct (condition (ii); and partly incorrect (condition (i) as being attempted by the assessee. Will the flat-seller sign on any agreement affirming the receipt of cash of ₹ 20 lakhs when they same is not actually received by him? In our opinion, the answer is negative. Therefore, we are of the opinion that the order of the CIT (A) on this issue needs no interference. Regarding the argument that the addition if any has to be considered only for the AY 2008-09, the same does not pertain to the year under consideration and the shall be examined as when the ground is raised in appropriate AYs. In any case, it is a settled principle that the same amount of ₹ 20 lakhs cannot be added twice in two different AYs when the flat in question is singular in number - Decided against assessee.
Deduction claimed u/s 48(i) - CIT(A) allowed claim - Held that:- It is true that the three sisters of the assessee possess residuary rights in the property, which was sold by the assessee and therefore, they are entitled to the part consideration and therefore, the said payments of ₹ 45 lakhs made to three sisters at the rate of ₹ 15 lakhs each, is the expenditure wholly and exclusively in connection with the transfer of the property. Considering the above settled position in the judgment of Hon’ble jurisdictional High Court in CIT vs. Shkuntala Kantilal [1991 (3) TMI 123 - BOMBAY High Court] we are of the opinion that the order of CIT (A) does not call for any interference. Accordingly, ground no.1 raised by the Revenue is dismissed and the issue is decided in favour of the assessee.
Deduction claimed u/s 54EC - investment in purchase of Capital Gain Bonds of Rural Electrification Corporation Ltd. - CIT(A) allowed claim - Held that:- As per assessee, he could not invest in REC Bonds within the stipulated period of six months because of non-availability of REC Bonds till 27.1.2007. In our opinion, assessee was prevented by a reasonable cause from purchasing the REC Bonds within six months period from the date of sale consideration by a reasonable cause of non-availability of Bonds. Therefore, we upheld the order of the CIT (A) on this issue and the decision of CIT (A) does not call for any interference - Decided in favour of the assessee.
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2013 (1) TMI 755
Issues involved: Challenge to interlocutory orders u/s 32-I of Central Excise Act by petitioner.
The petitioner challenged interlocutory orders dated 7-8-2012 and 20-11-2012 passed by the second respondent, alleging pre-judgment in favor of the first respondent without proper adjudication by revenue authorities. The High Court found the petitioner's submission misconceived, stating that the second respondent had not decided the issue but had only exercised powers u/s 32-I to request preparation of tabulated chart of alleged bogus invoices and duty credit details. The Court held that the orders were not illegal or without jurisdiction, given the powers conferred by the Central Excise Act.
The High Court concluded that the impugned interlocutory orders were valid under Section 32-I of the Central Excise Act, and no interference was warranted at that stage. However, the petitioner was granted the right to challenge the final decision of the second respondent on all available grounds in accordance with the law after it is made.
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2013 (1) TMI 754
Issues involved:
The validity of circular and notification u/s Finance Act, 1994 for levying Service Tax on widening, carpeting, and repairs of roads.
Judgment Summary:
Validity of Circular and Notification:
The petitioner, engaged in construction activities, challenged the circular and notification issued by the respondent as contrary to the Finance Act, 1994. The court noted that as per Section 97 of the Finance Act, 2012, no Service Tax shall be levied on management or repair of roads between June 16, 2005, and July 26, 2009. The petitioner, falling within this period, is not liable to pay any service tax for road management and repair during this time frame. Any service tax collected during this period shall be refunded as per the law. Therefore, the writ petition is disposed of with the mentioned terms, requiring the respondents to amend, withdraw, or modify the show cause notice accordingly.
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2013 (1) TMI 752
Cancellation of lease - Default in payment of lease rent - whether possession had indeed been taken over from the lessee pursuant to the termination of the lease. - Held that:- Lessee makes an unequivocal and unconditional admission that possession had indeed been taken over by the Appellant-Port Trust. What is significant is that the lessee had asked for refund of the amount paid by her towards instalments and in case such a refund was not possible to return the plot to her. We do not think that such an unequivocal admission as is contained in the letter can be wished away or ignored in a suit where the question is whether the lessee had indeed been dispossessed pursuant to the termination of the lease. There is no worthwhile explanation or any other reason that can possibly spell a withdrawal of the admission or constitute an explanation cogent enough to carry conviction with the Court. We have in that view no hesitation in holding that dispossession of the lessee had taken place pursuant to the termination of the lease deed in terms of panchnama dated 14th December, 1978.
Whether the suit for declaration to the effect that the termination of the lease was invalid and that the lease continued to subsist could be filed more than 17 years after the termination had taken place - Held that:- Court was dealing with proceedings arising under Article 226 of the Constitution, exercise of powers whereunder is discretionary but then grant of declaratory relief under the Specific Relief Act is also discretionary in nature. A Civil Court can and may in appropriate cases refuse a declaratory decree for good and valid reasons which dissuade the Court from exercising its discretionary jurisdiction. Merely because the suit is within time is no reason for the Court to grant a declaration. Suffice it to say that filing of a suit for declaration was in the circumstances essential for the plaintiffs. That is precisely why the plaintiffs brought a suit no matter beyond the period of limitation prescribed for the purpose. Such a suit was neither unnecessary nor a futility for the plaintiff’s right to remain in possession depended upon whether the lease was subsisting or stood terminated. It is not, therefore, possible to fall back upon the possessory rights claimed by plaintiffs over the leased area to bring the suit within time especially when we have, while dealing with the question of possession, held that possession also was taken over pursuant to the order of termination of the lease in question.
Addition of the lessee as a co-plaintiff in the suit also came as late as in the year 1999 when the original plaintiff transferee of the lease appears to have realised that it is difficult to assert his rights against the Port Trust on the basis of a transfer which was effected without the permission of the lessor-Port Trust. - Impugned order is set aside - Decided in favour of appellants.
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2013 (1) TMI 751
Issues involved: Grant of interim relief based on earlier final orders of CEGAT and pending References before the Principal Bench at Madras.
Interim Relief based on CEGAT Orders:
The petitioner sought interim relief based on the earlier final orders of CEGAT, arguing that the Reference Proceedings should be considered as a continuation of the Tribunal's proceedings. The petitioner contended that substantial questions of law were raised, justifying the need for interim stay. The learned Senior Counsel for the petitioner emphasized the significance of the CEGAT orders in Final Order Nos. 281 and 282, dated 23-2-2000. The Court acknowledged the petitioner's reliance on these orders and concluded that there was no justification to deny interim relief. Consequently, an order of interim stay was granted in favor of the petitioner/appellant.
Pending References before Principal Bench:
On the other hand, the Department had already filed References before the Principal Bench at Madras, which were pending in RCP Nos. 27 and 28 of 2001. The Standing Counsel for Customs and Central Excise Department argued against granting interim relief, citing the dismissal of writ petitions challenging the constitutional validity of Section 110 of the Finance Act. Despite the Department's objections, the Court noted that the References were indeed pending before the Principal Bench. In light of this, the Court determined that the petitioner/appellant should not be denied interim relief, especially given the weight placed on the earlier final orders of CEGAT. Consequently, an order of interim stay was issued, and the Registry was directed to forward the appeal records to the Principal Bench at Madras for joint consideration with the pending References.
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2013 (1) TMI 750
Issues:
1. Dismissal of writ petitions by the learned single judge.
2. Validity of reassessment orders denying set-off from the sanctioned incentive amount.
3. Legality of demanding payment of CST levied without allowing set-off.
4. Requirement of form C for sales with unregistered dealers.
5. Interpretation of section 8(5) of the CST Act.
6. Need for reconsideration of reassessment orders.
Issue 1: Dismissal of Writ Petitions:
The appellant, a registered dealer under the KST and CST Act, challenged the dismissal of writ petitions by the learned single judge. Respondent No. 4 had passed assessment orders granting tax exemption for certain years but later issued reassessment orders denying the benefit of incentive, leading to demand notices. The Division Bench held that the appellant needed to fulfill conditions, including filing form C, to avail benefits under section 8(5) of the CST Act.
Issue 2: Validity of Reassessment Orders:
The appellant argued that the reassessment orders denying set-off from the sanctioned incentive amount were unlawful. They contended that the demand for CST payment without allowing set-off was illegal. The appellant emphasized that the issue of incentive was not addressed in a previous judgment and that the amendments to section 8(5) of the CST Act should not prevent the continuation of incentives.
Issue 3: Requirement of Form C:
The appellant asserted that form C was not necessary for sales with unregistered dealers. The appellant relied on a court decision to support this argument.
Issue 4: Interpretation of Section 8(5) of the CST Act:
The court highlighted that the restriction imposed by the amendment could not affect exemptions granted for inter-State sales turnover with non-registered dealers and other entities. This crucial aspect was not considered by the learned single judge or respondent No. 4, necessitating a reconsideration of the reassessment orders.
Issue 5: Reconsideration of Reassessment Orders:
The court allowed the writ appeals, setting aside the impugned orders and remitting the matter to respondent No. 4 for reconsideration in accordance with the law and the judgment of the court in a related case.
In conclusion, the High Court of Karnataka addressed various issues related to the dismissal of writ petitions, validity of reassessment orders, requirement of form C, interpretation of section 8(5) of the CST Act, and the need for reconsideration of reassessment orders. The judgment emphasized the importance of fulfilling statutory conditions for availing benefits and ensuring that exemptions were not wrongly denied.
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2013 (1) TMI 749
Issues Involved: Appeal against confiscation and penalty imposition on imported goods misdeclared as "SS defective pipe, Grade 316 welded."
Confiscation of Goods:
The appellant ordered "SS defective pipe, Grade 316 welded" from their supplier, but received old and used pipes instead. The goods were seized before clearance, leading to confiscation on the grounds of misdeclaration. The appellant argued that they were misled by the supplier and had no intention to misdeclare. The issue was whether the appellant could be penalized without mens rea. The appellant's bona fides were questioned based on previous cases, but it was found that they had proven their innocence. Hence, the penalty was waived based on the principle that genuine importers should not be penalized for supplier fraud.
Penalty Imposition:
The appellant contested the penalty imposed under Section 112(1) of the Customs Act, arguing lack of mens rea. The appellant cited various case laws to support their claim of being bona fide importers. The respondent, however, maintained that mens rea was not necessary for penalty imposition. After considering both arguments, it was concluded that the appellant's innocence was established as they had ordered specific goods and the discrepancy was discovered only upon examination. The penalty was therefore waived, aligning with the decision in Oriental Containers Ltd. case.
Conclusion:
The penalty imposed on the appellant was waived as they were able to prove their innocence in the misdeclaration of goods. The impugned order was modified accordingly, emphasizing that genuine importers should not be penalized for discrepancies caused by suppliers.
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2013 (1) TMI 748
Whether it is for the Chief Minister to advise the Governor for appointment of a Lokayukta after consultation with the Chief Justice of the High Court of Karnataka, the Chairman of Karnataka Legislative Council, the Speaker of Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly?
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2013 (1) TMI 747
Liability of insurer towards gratuitous passengers – Payment of compensation – Held that :- as per decision of High court in similar case, Insurer was not liable for paying compensation to owner of goods or his authorised representative on being carried in goods vehicle when that vehicle meets with accident and owner of goods or his representative dies or suffers any bodily injury –Therefore High Court was clearly in error in holding that Section 147(1)(b)(i) takes within its fold any liability which may be incurred by insurer in respect of death or bodily injury to any person – High Court also erred in holding that claimant was travelling in vehicle in course of his employment since claimant was spare driver in vehicle and was not driving at relevant time – There was no insurance cover for spare driver in policy – Merely because claimant was travelling in cabin would not make his case different from any other gratuitous passenger – However, where owner has insured his vehicle against third party risks, direction can be sought against insurer to discharge liability under award first and then recover same from owner – Insurance company has already deposited entire awarded amount and said amount was invested in fixed deposit account – Appeal disposed – Decision of National Insurance Co. v. Roshan Lal and Another and New India Assurance Co. Ltd. v. Asha Rani [2002 (12) TMI 598 - SUPREME COURT] followed – Decided in favour of Appellant.
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2013 (1) TMI 746
Stay application - Bogus invoices - Issue of invoices without actual receipt of goods - held that:- At this stage when appeals are admitted and awaiting final disposal, we are not inclined to make any observations so as to prejudice either side in their contentions. Suffice it to notice that the applicants have made out a strong prima facie case. Considering the material on record and findings of the authorities we are of the opinion that insofar as penalty element imposed against the company/partnership firm and the office bearers/partners is concerned, same is required to be stayed pending the appeals - by partly allowing these applications in all the respective appeals, there shall be stay against the recovery of penalty against the company/partnership firm. However, the remaining portion of the duty and interest thereon is not stayed for which the applicants have time upto 28-2-2013 to deposit. - stay granted.
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2013 (1) TMI 745
Availment of exemption or concessional rates of Excise duty - benefit of notification dated 28-2-1993 - Held that:- Tribunal has recorded finding the judgment that the logos of the assessee as well as Hira Industries are different and they are not deceptive. This is not only a finding of fact, but, we have also compared the two logos. They are different and not deceptive. The assessee was entitled to exemption. - there is no merit in the appeal - Decided against Revenue.
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2013 (1) TMI 744
Exemption claimed u/s 54 denied - whether the assessee cannot claim exemption both u/s 54 and 54F for investment in the same house - Held that:- Sec. 54 and 54F apply under different situations. While sec. 54 applies to long term capital gain arising out of transfer of long term capital asset being a residential house, sec. 54F applies to long term capital gain arising out of transfer of any long term capital asset other than a residential house. However the condition for availing exemption under both the sections is purchase or construction of a new residential house within the stipulated period. There is also no specific bar either u/s 54 and 54F or any other provision of the Act prohibiting allowance of exemption under both the sections in case the conditions of the provisions are fulfilled. In the facts of the present case, since long term capital gain arises from sale of two distinct and separate assets viz., residential house and plot of land and the assessee has invested the entire capital gain in purchase of a new residential house, in our view, he is entitled to claim exemption both u/s 54 and 54F of the Act. We therefore direct the AO to delete the addition of ₹ 44,05,302/-. - Decided in favour of assessee.
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2013 (1) TMI 743
Condonation of delay - Inordinate delay of 3053 days - Held that:- documents placed before this Court that the letter dated 16-4-2009 addressed by the Assistant Commissioner to the Superintendent of Customs, Legal Cell informed about engaging the services of P. Bhuvaneswari, Advocate. Thereafterwards, on 15-9-2009, there was yet another letter stating that there was no appeal papers filed before the Registry. Thereafterwards, again on 1-10-2009, there was yet another communication from the Superintendent of Customs to the Commissioner of Customs informing about the handing over of the papers. After 1-10-2009, letters came from the Department were on 11-6-2010, 18-7-2011, 19-7-2011 and 17-8-2012. The appeal before this Court was filed only on 4-10-2012. Except for the correspondences, there being no explanation for the delay in between 2009 and 2012 and on which date they came to know about the non-filing of the appeal, we do not find any justifiable ground to condone the delay. - Condonation denied.
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