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Showing 301 to 320 of 848 Records
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2010 (10) TMI 953
Issues:
- Breach of section 78(2) of the Rajasthan Sales Tax Act, 1994 regarding the non-production of declaration form ST-18A during a vehicle check.
- Imposition of penalty under section 78(5) on the value of goods due to the alleged breach.
- Appeal by the assessee allowed by the Deputy Commissioner (Appeals) but challenged by the Revenue before the Rajasthan Tax Board.
- Interpretation of statutory provisions and legal precedents regarding the submission of documents after the initial checking.
- Assessment of whether the penalty imposed under section 78(5) was justified based on the facts and legal principles involved.
Analysis:
The case revolved around the alleged breach of section 78(2) of the Rajasthan Sales Tax Act, 1994, due to the non-production of declaration form ST-18A during a vehicle check. The assessing officer imposed a penalty under section 78(5) on the value of goods for this non-compliance. However, the assessee submitted the form in response to the show-cause notice. The Deputy Commissioner (Appeals) allowed the assessee's appeal, which was further challenged by the Revenue before the Rajasthan Tax Board. The Tax Board relied on legal precedents, including the apex court's decision in State of Rajasthan v. D.P. Metals, emphasizing the importance of allowing an opportunity to produce missing documents. The court noted that the form was submitted before the assessment order, leading to substantial compliance with the statutory provisions.
The judge highlighted the settled legal principle that revision petitions lie on questions of law, not facts. With both appellate authorities finding in favor of the assessee based on the facts and legal interpretations, the court declined to interfere in the matter. The judge emphasized that there was no merit in the revision petition and dismissed it, citing the lack of grounds for intervention. The decision underscored the importance of adherence to legal procedures and the significance of factual findings by lower appellate bodies in determining the outcome of such cases.
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2010 (10) TMI 952
Whether the Commissioner of Commercial Taxes was justified in holding that the appellant is liable to pay interest on belated payment of Central sales tax for the assessment year 2000-01?
Held that:- Payment of tax at concessional rate at four per cent along with monthly returns is on the specific premise that the appellant will produce C forms later or will pay differential tax with interest. The stand taken by the appellant is that since there is time to produce C forms, such time available for production of C forms will be available for payment of balance tax with out interest.
Irrespective of circumstances that led to delay in payment of tax, interest is payable at the rate prescribed in the statute. We notice that by virtue of section 9(2B), section 23(3A) of the KGST Act is made applicable for the purpose of levy and collection of interest for belated payment of Central sales tax. Thus we uphold the order of the Commissioner and dismiss the sales tax appeal
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2010 (10) TMI 951
Issues: Challenge against interim order of Kerala Value Added Tax Appellate Tribunal under section 44(8) of the KVAT Act, sustainability of the order, necessity for speaking orders by appellate authorities, early disposal of appeal, interim stay with conditions.
In this case, the petitioner challenged the exhibit P10 interim order passed by the Kerala Value Added Tax Appellate Tribunal, Ernakulam, which imposed a penalty under section 44(8) of the Kerala Value Added Tax Act. The petitioner had filed a second appeal along with a stay petition before the Tribunal. The petitioner argued that exhibit P10 order was issued in a cryptic manner without proper consideration of the grounds raised in the appeal. The High Court observed that appellate authorities are required to pass speaking orders reflecting proper application of mind to the facts and grounds raised in the appeal. The Court found that exhibit P10 order did not meet this requirement and deemed it unsustainable in the eye of the law.
The Court noted that the appeal was scheduled for a hearing but was adjourned, leading to a delay in the proceedings. Instead of remitting the matter back for fresh orders on the stay petition, the Court directed the Appellate Tribunal to ensure early disposal of the appeal. The Court emphasized the importance of justice and directed the Tribunal to consider and pass orders on the appeal promptly, preferably on the adjourned date. The Court set a timeline of three months for the disposal of the appeal.
Pending the appeal's decision, the Court ordered the stay of the penalty amount on the condition that the petitioner remit a quarter of the disputed amount and provide security for the remaining balance within three weeks. This interim measure aimed to balance the interests of both parties until a final decision was reached on the appeal. The Court's decision focused on ensuring a fair and timely resolution of the matter while upholding the principles of justice and due process.
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2010 (10) TMI 950
Issues: Reassessment order under Karnataka Tax on Entry of Goods Act, 1979 for assessment year 2004-05; Claim of appellant as 100% export-oriented unit exempt from entry tax; Appeal before first appellate authority; Modification of reassessment order by first appellate authority; Show-cause notice by revisional authority challenging first appellate authority's decision; Contention regarding jurisdiction of Karnataka Appellate Tribunal; Lack of production of relevant documents before appellate authority; Exercise of revisional powers by revisional authority.
Analysis:
The judgment of the Karnataka High Court pertained to a reassessment order issued under the Karnataka Tax on Entry of Goods Act, 1979 for the assessment year 2004-05. The appellant claimed to be a 100% export-oriented unit exempt from entry tax based on a government notification and certificates issued by various authorities. The assessing officer initially levied entry tax, leading to an appeal before the first appellate authority. The first appellate authority, upon reviewing the records produced by the appellant, directed the assessing authority to delete the entry tax on a specific turnover amount and issue a revised demand notice accordingly. Notably, the Revenue did not challenge this decision before the Karnataka Appellate Tribunal.
Subsequently, the revisional authority issued a show-cause notice to the appellant, contesting the first appellate authority's ruling. The revisional authority criticized the first appellate authority for not examining the account books and relevant documents to ascertain the appellant's eligibility for entry tax exemption. The appellant argued that the Karnataka Appellate Tribunal should be the final fact-finding authority to determine their entitlement as a 100% export-oriented unit and the authenticity of the certificates provided.
The High Court observed that the Revenue's intentions to challenge the first appellate authority's decision were unclear, as revisional powers were exercised by the revisional authority. The revisional authority's scrutiny revealed a lack of production of essential documents before the appellate authority, attributing it to the absence of mention in the first appellate authority's orders. Consequently, the High Court opined that the appellant's appeal should be allowed, granting the Revenue the option to contest the first appellate authority's decision through proper legal channels.
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2010 (10) TMI 949
Issues involved:
Penalty under section 78(10A) of the Rajasthan Sales Tax Act, 1994 for alleged violation of clause (b) of sub-section (2) of section 78.
Detailed Analysis:
1. Levying of Penalty:
The assessing authority imposed a penalty under section 78(10A) of the Act for the alleged violation of clause (b) of sub-section (2) of section 78. The petitioner challenged this penalty through an appeal, which was initially allowed by the Deputy Commissioner (Appeals). Subsequently, the Department filed a second appeal, which was dismissed by the Rajasthan Tax Board. The revision petition now challenges this judgment of the Rajasthan Tax Board dated September 30, 2009.
2. Contention of the Petitioner:
The petitioner's counsel acknowledged that the necessary documents were present with the vehicle during checking. However, the argument put forth was that the absence of a seal from the check-post on these documents should not be considered a violation of section 78(2)(b) of the Act.
3. Judicial Analysis:
The High Court, after considering the submissions of the petitioner's counsel and the reasoning provided by the appellate authorities, found that both authorities had correctly accepted the explanation given by the assessee. It was established that the person in charge of the vehicle had visited a specific location for personal reasons, which explained the absence of the check-post seal on the documents. The appellate authorities thoroughly examined the matter and concluded that there was no violation of section 78(2)(b) as all required documents were indeed present with the vehicle.
4. Question of Law vs. Question of Fact:
The High Court highlighted that the controversy in the case pertained to a question of fact, not a question of law. Moreover, there was a concurrent finding of fact by both the appellate authorities. As per legal principles, a revision to the court is permissible when a question of law is involved. Since the issue at hand was factual and there was no legal question, the High Court dismissed the revision petition.
5. Dismissal of Revision:
Conclusively, the High Court found no merit in the revision petition and dismissed it in limine. The court emphasized that since the matter revolved around factual findings supported by both appellate authorities, there was no basis for further legal intervention.
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2010 (10) TMI 948
Whether the Tribunal was justified in holding that the drawing of ribbed bar from iron scrap amounted to manufacture when the dealer got the process done by others?
Whether the Tribunal was justified in relying upon a decision of the Tribunal dated November 22, 1991 in Appeal No. 111-III/89 which is actually the opinion of only one Member of the Division Bench?
Held that:- We answer the above referred first question of law in affirmation to the effect that the Tribunal was justified in holding that the drawing of ribbed bar from iron scrap amounted to manufacture when the dealer got the process done by others
With regard to the second question, i.e., since the order passed by one Member appears to have been approved by the Tribunal and subsequently by this court, it is not necessary to decide the second question of law referred to us for consideration. This issue may be decided in an appropriate case.
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2010 (10) TMI 947
Relief sought for issuing appropriate direction to the second respondent/State Bank of Mysore to refund the sale advance of ₹ 25,20,000 paid to the schedule mentioned property on March 11, 2010
Held that:- The petitioner is entitled to ignore the auction sale of the property burdened with an order of attachment by the Sales Tax Department and as and when he exercises his right not to proceed further, the respondent-bank is bound to refund the amount deposited by him and this court is hence, inclined to grant the relief as sought for by the petitioner herein.
In the result, the writ petition is allowed as prayed for. The second respondent-bank is directed to refund the sale advance to the petitioner within two weeks from the date of receipt of the copy of this order.
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2010 (10) TMI 945
Exemption under the Expansion Scheme - Section 4A of UPTT - Whether stock transfers and consignment sales have to be included in calculating the base production - The assessing authority was of the view that the petitioner was liable to tax on the turnover of the quantity of the base production and was entitled for the exemption only on the quantity over and above the production in excess of the base production and the goods transferred by way of stock transfer and by consignment sale would not be included in the base production. With the aforesaid view the assessing authority calculated the quantity and the turnover of exemption.
Held that:- under the notification no. 640 dated 21.2.1997 the unit undergone expansion is entitled for the exemption on the turnover of the "quantity" in excess of the "quantity of base production" plus stock of the base production of the previous years. The base production includes the quantity of the stock transfer/consignment transaction.
The view taken by the Division Bench in the case of Ambika Steel Private Limited Vs. State of U.P. and others [2007 (9) TMI 541 - ALLAHABAD HIGH COURT] and in the case of M/s IFFCO Ltd. does not lay down the correct law and as such both the aforesaid decisions stand overruled.
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2010 (10) TMI 944
Issues Involved: Alleged contravention of Section 9(1)(a), 9(1)(b), and 9(1)(d) of FERA, violation of principles of natural justice, reliance on confessional statements, burden of proof on prosecution, lack of independent witnesses, cross-examination of witnesses.
Summary:
Alleged Contravention of FERA:
The appellant, along with co-accused, faced allegations of contravening Section 9(1)(a), 9(1)(b), and 9(1)(d) of FERA. Transactions involving payments and drafts were scrutinized, leading to a penalty of Rs. 2 lakhs imposed by the adjudicating authority, which was upheld in appeals dismissed by the Director, Enforcement Directorate.
Principles of Natural Justice:
The appellant contended that the denial of the opportunity to cross-examine witnesses violated principles of natural justice. It was argued that the prosecution must prove the case beyond doubt, ensuring the voluntariness of confessions without coercion. Lack of independent witnesses supporting the prosecution's case was highlighted.
Reliance on Confessional Statements:
While the defense emphasized the need for independent corroborative evidence, the prosecution relied on confessional statements recorded under Section 40 of FERA. The defense argued that the impugned orders were supported by material evidence, including seized documents, and were not solely based on confessions.
Burden of Proof and Lack of Evidence:
Citing a Supreme Court judgment, it was clarified that the burden of proof lies with the prosecution to establish charges beyond suspicion. The absence of evidence demonstrating the voluntary nature of confessions raised doubts about the basis for imposing penalties. The appellant's alleged violations of Sections 9(1)(a) and 9(1)(b) required concrete proof of transactions with non-residents, which was lacking.
Judgment and Conclusion:
Upon review, it was found that the reliance on confessions without evidence of voluntariness and the lack of legal support for the findings undermined the penalty imposition. Consequently, the appeal was allowed, and the penalty of Rs. 2,00,000 was set aside due to the absence of substantial legal evidence supporting the charges.
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2010 (10) TMI 943
Whether the respondent can reverse the Cenvat credit availed on capital goods treating it as undesirable credit to claim depreciation under Section 32 of the Income Tax Act, 1962, and pay duty from PLA otherwise payable after exhausting Cenvat credit balance thereby claiming refund of the same under Notification No. 39/2001-C.E., dated 31-7-2001?
Whether the option to avail Cenvat credit or claim depreciation under Section 32 of Income Tax Act, 1962 is a one time option or the assessee can choose to opt out of option once exercised?
Whether in a situation where benefit of an exemption notification is being availed in which mandatory condition to avail the substantive benefit is the utilization of the Cenvat credit, can assessee at his will opt out midway to avail the benefit under Income Tax Act, 1962, thus rendering mandatory condition of exemption notification inapplicable?
Whether Tribunal erred in not following its own decision, in the case of M/s. Pranam Industries Ltd. in Appeal No. E/3758/2005?
Held that:- Reversal of credit before utilization amounts to not taking credit and as such it cannot be said that the assessee had violated the provisions of the subject notification. In the circumstances, the Tribunal was justified in holding that when the clearances started from the assessee’s unit there was no Cenvat credit available in its account and that there was nothing wrong in taking a decision to claim depreciation instead of Cenvat credit and reversing the same before it started clearance of goods from its factory, and as such the refund had rightly been sanctioned.
For the foregoing reasons, there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law, as proposed or otherwise, much less, a substantial question of law, so as to warrant interference. The appeal is, accordingly, dismissed.
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2010 (10) TMI 942
Validity of statutory provisions in Sales Tax law in Punjab and Haryana for deduction of tax at source out of payment made to contractors for execution of works contracts involving transfer of property in goods at specified rate challenged
Held that:- Impugned provisions for deduction of tax at source will apply only to the taxable turnover i.e. after deducting service component and turnover relating to sales outside State, in the course of inter-State sales or in the course of import. The petitioner will give declaration in respect of such payments to the persons making the payment with a copy to the concerned assessing authority. This will be without prejudice to the provisions of assessment, levy of interest, penalty, recovery and all other statutory provisions. This arrangement will continue till any other appropriate arrangement is worked out by the States of Punjab and Haryana
Further directed that pending assessments upto the year 2009-10, may be finalized within six months from the date of receipt of a copy of this order and with regard to assessment for the year 2010-11, a provisional assessment be made relating to TDS amounts within the same period
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2010 (10) TMI 941
Whether the appellants were bona fide and diligently pursuing the remedy before a wrong forum?
Whether the application under Section 34 of the Act had to be filed in the District Court only after the withdrawal of ‘appeal’ under Section 34 of the Act before the High Court?
Held that:- Appeal allowed. The application under Section 34 of the Act was filed in time, by excluding the time spent before the wrong forum.
As appellants demonstrated their diligence and bona fides by filing the application under Section 34 of the Act on 19.10.2009 itself immediately on reopening of court, without waiting for a formal order of withdrawal of the ‘appeal’ under Section 34 before the wrong forum. Therefore, it cannot be said that filing of the application under Section 34 of the Act on 19.10.2009 was belated. Further if the period spent before wrong forum is excluded, the application is filed within three months and there is no question of explaining any delay. The filing of an application for condonation under a wrong provision of law will not vitiate the application. In fact though the application for condonation of delay was initially filed under Section 5 of Limitation Act, that was subsequently replaced by an application under Section 34(3) of the Act, and again by an application under Section 34(3) of the Act read with Section 14 of the Limitation Act.
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2010 (10) TMI 940
Issues involved: Failure to provide copies of relied upon documents leading to delay in judicial process.
Summary:
1. The Tribunal found that the Commissioner did not comply with the directions in the remand order, leading to unnecessary delays in the case. The appellant had paid a partial amount of the dues, but the Commissioner did not provide copies of documents as directed by the Tribunal, causing grievances to the appellant.
2. The correspondence between the appellant and the Revenue showed repeated requests for copies of documents relied upon in the show cause notice. Despite the appellant's efforts to obtain the necessary documents for a fair defense, the Revenue failed to provide them, leading to further delays in the proceedings.
3. The Commissioner's impugned order criticized the appellant for alleged delay tactics, but the Tribunal noted that the Assistant Commissioner's report was factually incorrect. The appellant had indeed requested the documents on time, but the authorities did not respond adequately. The Commissioner's failure to ensure the provision of necessary documents resulted in a flawed decision-making process.
4. In light of the above observations, the Tribunal set aside the impugned order and remanded the matter to the Commissioner for fresh adjudication. The Commissioner was directed to promptly supply the copies of documents to the appellant within a specified timeline to avoid further delays. The appellant was instructed to cooperate and not seek unnecessary adjournments, emphasizing the importance of adherence to principles of natural justice.
5. The Tribunal disposed of the stay petitions and appeals in the mentioned manner, aiming to streamline the adjudication process and ensure fair treatment of the appellant in the proceedings.
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2010 (10) TMI 939
When Form XX-B is primarily issued to the registered dealer even though the declaration relating to the quantum of the purchase made is to be made by the farmer, it was the primary responsibility of the dealer to have ensured that what was purchased was duly reflected in Form XX-B declaration and since the petitioner has failed to fulfil the said statutory obligation, the revision made and the equal value addition as well as the penalty imposed cannot be interfered with?
Held that:- If really such corrections were made as contended by the petitioner by the farmers themselves in Form XX-B declarations, that should have been ensured by the petitioner at the time of purchase itself by atleast getting necessary initials of the concerned farmer in Form XX-B declaration itself in order to rule out the possibility of any other allegations of such corrections said to have bee made by the petitioner/assessee at a later point of time. Therefore, in the absence of any other acceptable material, the revision of the taxable turnover made based on such corrections found in Form XX-B declaration at the instance of the respondent cannot be faulted. We are not therefore, inclined to interfere with the addition of suppressed value of turnover to the extent of ₹ 1,28,466/- made by the Assessing Authority and confirmed by the Lower Appellate Authority as well as the Tribunal.
The revision petition therefore stands partly allowed and while sustaining the revision of the taxable turnover based on suppression to the tune of ₹ 1,28,466/-, the imposition of penalty as well as equal addition stand deleted
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2010 (10) TMI 938
Whether the 'export sale' will also be a 'sale' which does not attract the levy of tax under Section 3(4) of the Act ?
Held that:- Section 3(4) of the Act will have no application since situs of the export sales of the petitioners for the purpose of said Section was the State of Tamilnadu and by virtue of the said factual position, the applicability of Section 3(4) stands excluded for the exigibility of tax. The questions are accordingly answered in favour of the petitioners/assessee.
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2010 (10) TMI 937
Sales tax levied at 5% treating the transaction as outright sale of printed materials overruling the plea of the petitioner that the transactions are by way of execution of works contract - the petitioner was also subjected to penalty under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959, (for short 'the Act') for the alleged excess collection of sales tax at 8% instead of 5%
Held that:- On a careful reading of the order of the appellate authority, it is seen that the authorised representative of the petitioner/assessee has made a detailed submission by contending that the assessee undertakes only contract works for executing the orders placed by the customers and there are no materials available before the authorities to hold that the assessee is also manufacturing and selling printed materials in the open market on commercial basis. Though such arguments were advanced, a reading of the order does not indicate consideration of the materials placed by the petitioner. In fact, the learned counsel appearing for the petitioner has produced those materials before us and on a perusal of the same, it appears, prima facie, to us that the petitioner receives orders from the specified customers for printing of ledgers, receipts, bill books, etc. and these works are undertaken and after the printings are completed, the printed materials are supplied to the customers who placed orders. There is absolutely no discussion about the above materials by the appellate authority as well as the Tribunal.
In fact, the appellate authority has merely relied upon the earlier finding, viz., that the dealers have sold printed book, forms to the public and on verification of the assessment file found that the assessee had paid tax both at the rate of 8% and 5%, as pointed out by the assessing authority. There are no materials in support of the said finding. Hence, on the said ground alone, the findings of both the appellate authority as well as the Tribunal are liable to be set aside and the matter should be remitted back to the assessing officer for fresh consideration. Tax Case Revision is allowed
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2010 (10) TMI 936
Issues involved: Contravention of Section 9(1)(b) of the FER Act regarding receipt of payment from a person resident outside India without RBI permission.
Summary:
The appeal was filed against an Adjudication Order imposing a penalty for contravention of Section 9(1)(b) of the FER Act. The appellant received Rs. 1,30,000 in 1993 from a person resident outside India without RBI permission. The appellant admitted to receiving the amount and using it to purchase a property for his daughter. The Enforcement Directorate seized Rs. 1,15,000 from the appellant's residence. The appellant later retracted his statement, claiming it was obtained under threat and coercion.
The legal position under Section 9(1)(b) of the FERA, 1973 was considered, which prohibits receiving payments from a person resident outside India without RBI permission. The burden of proving that the confessional statement was obtained under duress was on the appellant, which he failed to discharge. The delay in retracting the statement and lack of documentary evidence to support the retraction were noted. The Supreme Court precedent highlighted the importance of proving inducement or coercion in such cases.
The appellant's retracted statement was corroborated by the statement of another individual involved in hawala payments and circumstantial evidence. The retraction was deemed an afterthought made under legal advice. The appellant's assertion of threat and coercion lacked evidence to support it. The confessional statement was considered voluntary and true based on the evidence presented.
Ultimately, the charges of contravening Section 9(1)(b) of the FER Act were found proved against the appellant. The penalty imposed was deemed commensurate with the gravity of the charge. The appeal was dismissed, directing the appellant to deposit the penalty amount within 30 days, failing which the respondent could recover it in accordance with the law.
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2010 (10) TMI 935
Issues Involved:
The judgment involves issues related to provision for bad debt in book profit computation, levy of interest under section 234D, disallowance under section 14A, yield to maturity method of valuation, classification of rural branches, and proportionate addition of expenditure attributable to exempted income in book profit computation under section 115JA.
Provision for Bad Debt:
In I.T.A. No. 1758 of 2009, the issue of whether provision for bad debt should be added in the computation of book profit was raised. Despite a Supreme Court decision in favor of the assessee, a subsequent retrospective amendment nullified the judgment. The High Court set aside the Tribunal's order and directed the Assessing Officer to consider the amended provisions for reassessment.
Levy of Interest under Section 234D:
Regarding the levy of interest under section 234D of the Income-tax Act, the High Court referred to a specific judgment and directed the Assessing Officer to demand interest in accordance with the said judgment, setting aside the Tribunal's order on this issue.
Disallowance under Section 14A:
In I.T.A. Nos. 1778 and 1772 of 2009, the common issue raised was the disallowance under section 14A of the Act. The High Court held that reassessment under section 147 for any assessment year prior to 2001-02 is not justified as per the proviso to section 14A, leading to the dismissal of Revenue's appeals on this issue.
Yield to Maturity Method of Valuation:
The judgment addressed the yield to maturity method of valuation in I.T.A. No. 1778 of 2009, citing a previous judgment in favor of the assessee. The appeal on this issue was turned down based on the earlier decision.
Classification of Rural Branches:
In I.T.A. No. 1772 of 2009, the issue of classifying rural branches as per the statutory definition was discussed. The High Court reversed the Tribunal's order on this issue and directed the Assessing Officer to follow a specific judgment for necessary modifications in the assessment.
Proportionate Addition of Expenditure:
The last issue involved the proportionate addition of expenditure attributable to exempted income in the computation of book profit under section 115JA. The High Court highlighted an independent provision in Explanation to section 115JA authorizing such addition, directing the Assessing Officer to modify the assessment without reference to section 14A of the Act. The appeals were disposed of accordingly.
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2010 (10) TMI 934
Whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered officer to `inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?
Held that:- Appeals now, be placed before the appropriate Bench for disposal.Though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.
No hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
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2010 (10) TMI 933
Refund claim - unjust enrichment - Section 11-B of the Act - case of appellant is that mere fact that in gate passes/invoices, duty payable was mentioned which was never factually received, it could not be held that the assessee had passed on burden to the consumers and thus the finding of unjust enrichment was erroneous - Held that: - once the gate passes/invoices showed that that duty was part of the invoices issued, in such a situation presumption is that the duty has been passed on to the consumers and the said presumption is not rebutted merely by the fact that the assessee did not actually realize the amount - Once the duty is added in the invoices, the purchaser gets benefit of MODVAT credit. Learned counsel for the assessee has not been able to show any law that in such a case, the burden on the assessee will stand discharged - appeal dismissed - decided against assessee.
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