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Showing 321 to 340 of 1247 Records
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2012 (9) TMI 937
Issues involved: Appeal against order of CIT(A) regarding assessment barred by limitation u/s 158 BC(c) of the Income-tax Act, 1961.
Summary:
The Department filed an appeal against the order of CIT(A) regarding the assessment being barred by limitation u/s 158 BC(c) of the Income-tax Act, 1961. The search and seizure operation u/s 132 of the Act was conducted at the assessee's residential premises on 3.2.1999. The Assessing Officer framed the assessment at an income of Rs. 33,22,690/- on 27.4.2001. The assessee challenged the validity of the assessment order, contending that the search was concluded on 3.2.1999, and the assessment made on 27.4.2001 was time-barred. The CIT(A) observed that the search was effectively concluded on 3.2.1999, and the block assessment order should have been passed by 28.2.2001. The CIT(A) treated the block assessment order as time-barred based on the facts and relevant case laws.
The Department contended that the time available for completing the assessment was up to 30.4.2001, and the assessment order passed on 27.4.2001 was within the time limit. However, the Tribunal noted that the search was conducted on 3.2.1999, and the prohibitory order u/s 132(3) was lifted on 13.4.1999 without anything being seized from the sealed almirah. No statement was recorded on 13.4.1999, and the proceedings were concluded within half an hour. Citing relevant case law, the Tribunal held that the actions on 13.4.1999 did not extend the time limit for passing the block assessment order. Therefore, the Tribunal upheld the CIT(A)'s decision that the assessment order was time-barred.
In conclusion, the Tribunal dismissed the appeal of the Revenue, affirming the decision that the block assessment order was time-barred based on the completion of the search on 3.2.1999 and the lack of substantive actions on 13.4.1999.
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2012 (9) TMI 936
Computation of capital gain - Held that:- The stamp duty rate for a big and small plot is not different. Hence, in our considered opinion, the adjustment made by Ld. CIT(A) by reducing land area to the extent of 35% is not justified. We reverse the same..
The entire share of the assessee in the fair market value of the land to the extent of 18.10% should be considered for working out the capital gain of the assessee and as and when the assessee receives any amount out of the dispute amount of ₹ 1,78,16,427/-, in that event, such actual receipt should be brought to tax in its totality without any reduction on account of indexed cost of acquisition but in the present year, the cost of acquisition cannot be reduced. We hold accordingly.
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2012 (9) TMI 935
Issues Involved: Assessment based on stock variation, photocopies of sale bills, penalty under section 12(3)(b) of the Income-tax Act.
Assessment based on Stock Variation:
The assessee, a dealer in pulses and grams, appealed against the order of the Joint Commissioner for the assessment year 1994-95. The inspection revealed discrepancies such as daily cash balance and totals struck in pencil, lack of separate sale bills for taxable and non-taxable goods, and stock variation in certain items. The assessing officer estimated turnover by adding four times the actual suppression, leading to penalty under section 12(3)(b). The Appellate Assistant Commissioner found deficits in chillies and tamarind stock, but no dealings with tamarind by the assessee. The turnover was fixed at Rs. 7,145, with deletion of the four times addition and adoption of one time addition.
Photocopies of Sale Bills:
The first appellate authority reduced the penalty under section 12(3)(b), but the Joint Commissioner invoked suo motu proceedings to restore the assessment, claiming that the photocopies of sale bills were related to the assessee's business. However, the assessee argued that the slips were used for jottings by their son for a separate money lending business, not connected to the assessee's activities. The Joint Commissioner held a nexus between the slips and the assessee's business, but the High Court set aside this decision due to lack of conclusive evidence linking the slips to the assessee's transactions.
Penalty under Section 12(3)(b) of the Income-tax Act:
The Revenue contended that the slips belonged to the assessee, shifting the burden of proof. The Joint Commissioner emphasized the relevance of the slips to the assessee's business, leading to restoration of the assessment with modifications. However, the High Court found no clear link between the seized slips and the assessee's transactions, ultimately setting aside the Joint Commissioner's order and confirming the decision of the Appellate Assistant Commissioner.
In conclusion, the High Court allowed the appeal, stating that there were no conclusive materials establishing the seized slips' connection to the assessee's transactions, thereby setting aside the Joint Commissioner's order and confirming the decision of the Appellate Assistant Commissioner.
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2012 (9) TMI 934
Issues involved: Determination of income from contract business u/s 44AD, rejection of books of account, estimation of profit rate, allowance of depreciation.
Determination of income from contract business u/s 44AD:
The Revenue appealed against the CIT(Appeals) order directing the Assessing Officer to adopt 5% of gross contract receipts as income, arguing that each assessment year was distinct and res judicata did not apply. The assessee, a civil contractor, had filed returns admitting income for the relevant assessment years. The Assessing Officer rejected the books of account, estimating income at 8% of gross contract receipts. The CIT(Appeals) appreciated the assessee's contentions and directed profit estimation at 5% of gross receipts for both years. The Tribunal noted that the turnover exceeded the threshold under Section 44AD, making the 8% rate inapplicable. The Assessing Officer's estimation was upheld, with the directive to separately allow depreciation if claimed, ensuring fairness in income determination.
Rejection of books of account and estimation of profit rate:
The Assessing Officer rejected the books of account due to defective vouchers and estimated income at 8% of gross receipts. The CIT(Appeals) reduced the profit rate to 5% based on the assessee's arguments. The Tribunal acknowledged the Assessing Officer's estimation in the absence of clear depreciation claims, emphasizing the need for separate allowance of depreciation. The Tribunal upheld the 8% profit rate but directed the subsequent allowance of depreciation, ensuring a fair assessment of income.
Allowance of depreciation:
The Tribunal highlighted the statutory nature of depreciation as a legitimate allowance for the assessee. While upholding the 8% profit rate for income determination, the Tribunal stressed the separate calculation and allowance of depreciation. The Tribunal directed the Assessing Officer to assess income at the returned level if, after allowing depreciation, it falls below the returned income. This approach aimed to balance the estimation of income with the rightful allowance of depreciation, ensuring a just assessment outcome.
Separate Judgment:
The Tribunal differentiated the present case from a previous decision involving a sub-contractor, emphasizing the unique circumstances of the current assessment. The Tribunal allowed the Revenue's appeals for statistical purposes, maintaining the integrity of the assessment process.
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2012 (9) TMI 933
Issues involved: Impugning order confirming demand of service tax for supply of tangible goods, seeking declaration on applicability of service tax u/s 65(105)(zzzzj) of Finance Act, 1994, and seeking direction for payment of value added tax.
Impugned Order: The petitioner company let heavy machinery on hire to customers. Show cause notice issued for payment of service tax on 'business auxiliary service' and 'supply of tangible goods service'. Commissioner confirmed demand for 'supply of tangible goods service' but dropped demand for 'business auxiliary services'.
Alternate Remedy: Respondents raised preliminary objection on tenability of petition due to alternate remedy u/s 86 of Finance Act. Petitioner argued appeal under section 86 would not be efficacious as per circulars issued by Finance Department. Court held that issue can be decided in appeal under section 86 and dismissed the writ petition.
Appellate Authority: Excise Commissioner filed appeal under section 86 against part of order dropping demand for business auxiliary service. Appellate authority can decide correctness of demand for supply of tangible goods and applicability of circulars issued by Finance Department.
Judicial Restraint: High Court should exercise restraint in entertaining writ petitions in tax matters when effective alternate remedy is provided under statute. Issue of liability to pay service tax or sales tax arises only if challenge to Commissioner's order fails.
Decision: Preliminary objection upheld, writ petition dismissed. Petitioner granted liberty to file appeal within one month. Appellate authority to decide on merits, keeping all questions raised in writ petition open.
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2012 (9) TMI 932
The appeal was dismissed for non-compliance with Section 35F of the Central Excise Act, 1944. The applicant's claim of debiting amount from CENVAT Credit Account was not accepted, leading to dismissal of the restoration application.
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2012 (9) TMI 931
Issues Involved:
1. Amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908.
2. Whether the proposed amendments alter the claim/cause of action.
3. Prejudice to the respondents due to the amendment.
4. Necessity of the amendment to determine the real questions in controversy.
Issue-Wise Detailed Analysis:
1. Amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908:
The appellants filed an application under Order VI Rule 17 read with Section 151 of the Code for amendment of the plaint. The trial Court dismissed the application on 06.06.2007, which was confirmed by the High Court on 13.11.2007. The Supreme Court emphasized that parties are permitted to amend their pleadings at any stage to determine the real questions in controversy, provided it does not cause injustice or prejudice to the other side. The Court noted that the original provision was deleted by Amendment Act 46 of 1999 but restored by Amendment Act 22 of 2002 with a proviso that restricts amendments after the trial has commenced unless due diligence is demonstrated.
2. Whether the proposed amendments alter the claim/cause of action:
The appellants initially sought a permanent prohibitory injunction against forcible dispossession. Respondents claimed ownership based on sale deeds dated 25.08.2003. The appellants argued that these sale deeds were void and sought their cancellation through the amendment. The Supreme Court found that the factual matrix for the relief sought was already set out in the un-amended plaint, and the relief of cancellation did not change the nature of the suit. The Court held that if the necessary factual basis is already in the plaint, the relief sought by amendment does not alter the suit's nature.
3. Prejudice to the respondents due to the amendment:
The Supreme Court assessed whether the respondents would be prejudiced by the proposed amendments. It concluded that the reliefs claimed by the appellants were not barred in law and that allowing the amendments would avoid multiplicity of litigation. The Court observed that the amendments were necessitated due to the High Court's earlier order indicating that an application for ad-interim injunction without seeking cancellation of the sale deeds was not maintainable. The Court found that the respondents, being transferees under the sale deed and nephews of the appellants, were aware of the void nature of the sale deeds and thus not bona fide purchasers.
4. Necessity of the amendment to determine the real questions in controversy:
The Supreme Court reiterated that amendments necessary to determine the real questions in controversy should be allowed if they do not change the suit's basic nature. The Court cited previous decisions, emphasizing that amendments should be permitted to serve the ultimate cause of justice and avoid further litigation. The Court concluded that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, was to protect the appellants' interests and did not change the suit's basic nature.
Conclusion:
The Supreme Court set aside the orders of the trial court and High Court, allowing the application for amendment. It directed the trial Court to dispose of the suit within six months, allowing the respondents to file an additional written statement if desired. The appeal was allowed with no order as to costs.
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2012 (9) TMI 930
Issues involved:
The issues involved in the judgment are duty demand confirmation, penalty imposition, and non-compliance with pre-deposit orders under Section 35F of the Central Excise Act.
Duty Demand Confirmation and Penalty Imposition:
The jurisdictional Commissioner confirmed a duty demand of Rs. 17,85,62,431 against M/s. Parasrampuria Synthetics Limited along with interest and imposed an equal amount of penalty. Additionally, a penalty of Rs. 50 lakhs was imposed on appellant Shri Alok Parasrampuria, the Managing Director of the company, along with penalties on various other parties.
Non-Compliance with Pre-Deposit Orders:
Both the appellant company and Shri Alok Parasrampuria preferred appeals against the impugned order and sought waiver of pre-deposit under Section 35F of the Central Excise Act. The Tribunal, in a common order, directed the appellant company to pre-deposit Rs. 3.5 crore within twelve weeks. Non-compliance with the pre-deposit order led to the rejection of the company's appeal as per the provisions of Section 35F. Shri Alok Parasrampuria was directed to pre-deposit Rs. 50 lakhs, the penalty amount imposed on him, within four weeks from the date of the order. His appeal was scheduled for compliance on 5-10-2012.
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2012 (9) TMI 929
Income derived from the letting out of premises of the 'Cyber City' - whether to be assessed as business income or House Property - Held that:- assessee has provided various complex integrated services as mentioned in Schedule-II to the lease agreement with the I.T. Company. The services are vast and the amenities provided were in the nature of plant and machinery as contended by the assessee and it has been established by the clauses of the agreements that the cost of providing these services was also included in the lease rent of ₹ 14.30 per sq.ft. The assessee also clarified that cost involved in the services provided to the particular company i.e., exl Services.com was ₹ 2.83 crores which was almost 40% of the land and building cost of that tower. By no stretch of imagination such extensive and specialized services which could only be utilised by the IT/Software/BPOs businesses to be located in the I.T. Park could be treated as forming part of income from house property. It is certainly a constitution of organised structure for carrying out business activities. Section 22 provides only for rental income out of building or land appurtenant thereto, whereas in the case before us, complex and varied services provided and the huge investment therein were in the nature of plant and machinery which could be included within the expression building or land appurtenant thereto. Thus, the assessee has conducted systematic activity to earn profit and accordingly income was to be assessed as income from business. In view of the submissions made on behalf of the assessee, and analysis of various clauses and Schedule-II of the agreement entered with the I.T. company, CIT(A) was justified in holding that in assessee’s case the said income was to be assessed as business income. This reasoned factual finding need no interference from our side. - Decided against revenue.
Claim of deduction u/s.80IB(10) in respect of disallowance made u/s. 40(a)(ia)/43B - CIT(A) allowed claim - Held that:- We are not inclined to interfere in the finding of the CIT(A) on the issue. The CIT(A) observed that turnover was from the same source in respect of the claim u/s.80IB(10). Therefore, it was entitled for deduction after including the statutory disallowance i.e., on correspondingly enhanced income. Assessee was held entitled for deduction u/s.80IB(10) in case there was enhanced income on account of statutory disallowance u/s.43B, 40(a)(ia) and 36(1)(va), etc. In the instant case nature of receipts on credit side of Profit and Loss Account for eligible housing projects u/s.80IB(10) was the same and disallowance of expenditure on the debit side would only result into enhancement of net profit. Accordingly, the assessee’s claim was liable to be allowed in view of the ratio of the decisions cited (supra). As stated above, assessee is not eligible for deduction u/s.80IB(10) pertaining to its Cosmos project. The Assessing Officer has held in assessment order that sum of claim u/s. 80IB(10) was allowable to assessee for its Heliconia project. Thus, if any disallowance u/s.43B, 40(a)(ia) or 36(10(va) etc., relate to Heliconia project that only can be considered for claim u/s.80IB(10) and corresponding enhanced income. This reasoned finding of the CIT(A) on the issue needs no interference from our side. - Decided against revenue.
Deduction u/s.80IB(10) in respect of the Cosmos Project - AO denied the deduction on the ground that the built up area of the units in building Prime included in the said project exceeded 1500 sq.ft. - Held that:- CIT(A) was not justified in holding that flats in building Prime had built up area exceeding 1500 sq.ft., the entire Cosmos Project did not qualify for deduction u/s.80IB(10) in respect of its profits. There is nothing on record to suggest that assessee has claimed deduction in respect of building Prime wherein built up area of its units is exceeding 1500 sq.ft. In fact there were 25 buildings in Cosmos Project out of which except building Prime, all other buildings satisfy the conditions of built up area limit of 1500 sq.ft. Therefore, deduction u/s.80IB(10) should be allowed in respect of profit from such buildings. This view is fortified by the decisions in Vandana Properties (supra) and Aditya Developers (supra) discussed above. As regards two flats combined together, the allegation is that some units were combined into one, so deduction u/s.80IB(10) should not be allowed. In this regard, assessee’s stand has been that assessee conceived the flats as independent units and these were constructed as independent units. There is nothing on record to suggest that assessee himself has joined the adjacent flats. In this situation, assessee should not suffer for its no fault if purchaser join the adjoining flats. Thus we hold that assessee is entitled for deduction u/s.80IB(10) in respect of entire profits computed after making additions/disallowances in respect of Cosmos Project consisting of 24 buildings excluding Prime building. See Haware Constructions Pvt. Ltd. (2011 (8) TMI 1080 - ITAT MUMBAI), Emgeen Holdings P. Ltd. (2011 (7) TMI 199 - ITAT MUMBAI) and Arcade Bhoomi Enterprises [2013 (7) TMI 210 - ITAT MUMBAI]. Decided in favour of assessee.
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2012 (9) TMI 928
Manufacture - The respondent-assessee received duty paid MS angles, MS Rods, MS Plates and MS Channels and undertook the process of cutting of the angles, rods, plates and channels as per customer specification and drilled holes to the cut pieces, to facilitate fastening with bolts and nuts while erecting towers. The assessee was supplying these parts for erection of towers - Whether the items cleared by the respondents are dutiable and excisable? - Held that: - the parts fabricated by the respondents are not dutiable and there was no process of manufacture involved - appeal dismissed - decided against Revenue.
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2012 (9) TMI 927
Issues involved: Refund of custom duty denied on the grounds of limitation.
Summary:
The appellant imported chemicals, paid excess duty, and challenged the assessment. The Commissioner (Appeals) set aside the assessment on 28-5-2008, directing re-assessment. The Revenue appealed to the Tribunal, which confirmed the order on 5-8-2011. The appellant filed a refund claim on 18-2-2009, before the re-assessment was done on 16-2-2010 & 31-3-2010. The claim was rejected as time-barred on 30-4-2010, upheld by the Commissioner (Appeals) on 28-1-2011. The issue was the starting date of the limitation period for the refund claim.
The appellant argued that the limitation should start from the date of re-assessment on 31-3-2010, while the Revenue contended it should start from the date of setting aside the assessment on 28-5-2008. The Tribunal considered the provisions of Section 27 of the Customs Act, 1962, which allows filing a refund claim within six months of a judgment, decree, or direction of the appellate authority. Since the Tribunal's order on 5-8-2011 set aside the original assessment, the limitation for the refund claim started from that date.
The Tribunal held that the refund claim was within the time limit and set aside the previous order, directing the adjudicating authority to consider unjust enrichment and pass the order accordingly within 30 days.
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2012 (9) TMI 926
Issues involved: Appeal against order of Customs Tribunal regarding classification of imported Crude Palm Oil and imposition of Basic Customs Duty.
Classification of Crude Palm Oil: The respondent imported Crude Palm Oil which was tested for acid content by the Port Health Officer and the Chemical Examiner. The acid content was found to be above 10, leading to imposition of Basic Customs Duty at 100% instead of the lower rates specified in the notification.
Validity of Testing and Duty Imposition: The Tribunal considered the validity of the testing and imposition of differential Basic Customs Duty. It referred to previous cases and found that the imposition of duty based on acid value after a lapse of time from import was unsustainable. The Tribunal concluded that the quality of the imported oil should be determined at the time of import, not later.
Decision: The High Court dismissed the appeal under Section 130 of the Customs Act, 1962, finding no error in the Tribunal's conclusion. It held that there was no question of law, let alone a substantial question of law, arising for consideration. The appeal was dismissed at the stage of admission.
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2012 (9) TMI 925
Whether the Respondents should be permitted to complete the remaining work on the land and the petitioner should be left with the option of raising a claim before the appropriate forum for such loss and compensation, if any, to which he may be entitled to in law?
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2012 (9) TMI 924
Extension of stay on collection of outstanding demand - Held that:- We are of the opinion that the stay on collection of outstanding demand be extended for a further period of 180 days from 7.9.2012 or till the disposal of appeal whichever is earlier. The appeal is posted for hearing on 29th October, 2012.
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2012 (9) TMI 923
Waiver of pre deposit - whether Tribunal could have directed pre-deposit of the amount of excise duty once it set aside the adjudicating authority’s order and remitted the matter for fresh consideration - Held that:- once the Tribunal remits the matter for consideration, there is no need of pre-deposit of the amount as no demand stands. In these circumstances the direction of the Tribunal cannot be supported in law at all. This Court has considered the submissions. The show cause notice issued to the assessee culminated into a demand of penalty. The order of the Tribunal had the effect of setting at nought the determination of the adjudicating authority fixing the duty and penalty liability. In these circumstances, the Tribunal by no stretch of imagination could have directed the very same amount to be deposited - Court is conscious of the fact that that appeal is pending. Having regard to these contentions of the appellant, it is the impugned order has to be set aside to the extent the appellant is aggrieved. The direction to pre-deposit the amounts demanded, made by the Tribunal is accordingly set aside. - Decided in favour of assessee.
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2012 (9) TMI 922
Addition being accrued interest on advances - ITAT deleted the addition - Held that:- The Tribunal endorsed the finding of the CIT (Appeals) relying upon its decision for the assessment year 2004-2005. The Tribunal’s finding would show that it had also relied upon the decision of the Supreme Court in Fuerst Day Lawson ltd. Vs. Jindal Exports Ltd., (2001 (5) TMI 881 - SUPREME COURT OF INDIA).
This Court also noticed that having regard to the terms of the repealed Arbitration Act, 1940, an award could not be enforceable. The same was the case with the foreign award; the Court had to first adjudicate as to the enforceability.
In these circumstances, the assessee’s right to interest was a mere claim, till the date of the judgment of the Court dated 4th December, 2006. In other words, the right to interest crystallized after the judgment of the Court. Till then, it was inchoate. For this reason, the Tribunal’s finding cannot be faulted with. Decided against revenue.
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2012 (9) TMI 921
Import of pulses (Toor Whole) - unsafe or sub-standard food - Held that:- When import of sub-standard materials is prohibited testing is required to be done at the point of entry into India. Any certificate of a prior date is of no consequence. It is possible that the said consignment was in perfect condition on the date on which samples were drawn for analysis by SGS Myanmar Limited but subsequently deteriorated in course of transit. Even in such circumstances, this Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot issue mandatory orders for clearance of a consignment that is found sub-standard when the same landed in India.
Instructions contained in the circular of the Senior Inspecting Officer of the Food Authority cannot, in my view, be enforced by initiation of proceedings under Article 226 of the Constitution of India. The circular has been issued in response to representations for relaxation of standards. The prayer for relaxation of prescribed standards was apparently turned down having regard to the object of ensuring the mandate of safe food imports into India.
An importer can be allowed facilities for improving the quality of foodgrains, at the sole discretion of the Authorized Officer of Food Authority who is required to ensure that clearing/sorting of food grains can be done by the importer strictly under the supervision of the Customs in customs bonded area. - Decided against the petitioner.
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2012 (9) TMI 920
Denial of refund claim - Refund of unutilized CENVAT Credit - High Court admitted the appeal of Revenue against the decision of Tribunal wherein Tribunal held that assessee is eligible for the refund of unutilised accumulated credit on opting out of Modvat Scheme excluding the reversed credit involved in inputs, work in process and finished goods lying in stock on the date of opting out of Modvat Scheme. High Court admitted the appeal on following substantial questions of law:-
Whether in the facts and circumstances of the case and in law, the Tribunal is justified in allowing the appeal of the Respondent and holding that the Respondent is entitled for refund in cash when in fact and as a matter of fact the Respondent failed to prove that the said accumulated balance of Cenvat credit is due to the duty free clearance of the goods exported?
Whether in the facts and circumstances of the case and in law, the Tribunal is justified in allowing the appeal of the Respondent for refund claim, when the Respondent failed to discharge their burden under Rule 5 of the CENVAT Credit Rules, 2004?
Whether in the facts and circumstances of the case and in law, the Tribunal is justified in following the judgment of Karnataka High Court in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd. reported in [2006 (7) TMI 9 - HIGH COURT OF KARNATAKA (BANGALORE)] when the facts in the said case and that in the present case are distinct and different and the ratio in the said judgment does not apply to the present case?
Whether in the facts and circumstances of the case and in law, the order of CESTAT is contrary to the evidences on record and hence perverse?
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2012 (9) TMI 919
Exemption under Notification No. 6/2006-C.E., dated 1-3-2006 - Non maintenance of separate account - Held that:- In respect of supplies made by a manufacturer against international competitive bidding by availing full exemption under Notification No. 6/2006-C.E. (Sl. No. 91) the provisions of sub-rules (1), (2) and (3) of Rule 6 are not applicable in view of the provisions of sub-rule (6) of Rule 6. When the appellant had wrongly paid the amount under Rule 6(3) of the Cenvat Credit Rules and had requested the Department for its recredit and thereafter had reminded the Department for the recredit and when in pursuance of their request for recredit, the same had been allowed by the Assistant Commissioner vide order dated 20-4-2009 just because the appellant had taken the recredit on their own on 31-3-2009, there would be no justification for imposition of penalty. When the Assistant Commissioner vide order dated 20-4-2009 had permitted the recredit of ₹ 9,80,354/- this credit would be treated as available for the month of March, 2009 and hence there would be no excess utilization of credit during that month. In view of this, the cenvat credit demand and penalty does not appear to be sustainable - Stay granted.
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2012 (9) TMI 918
Waiver of pre deposit - whether the appellant would be eligible for Cenvat credit in respect of Saree Guard - Held that:- “Saree Guard” is fitted with two wheelers as per the requirement of Rule 123 of Central Motor Vehicles Rules and two wheelers are cleared on payment of duty on the value which includes the value of Saree Guard. In view of this, the appellant have a prima facie case in their favour. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed till disposal of the appeal - Stay granted.
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