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Showing 341 to 360 of 851 Records
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2011 (6) TMI 703
Whether the JCB is not a "construction tool" as claimed by the petitioner?
Held that:- So much so, contractors answer the description of processors of goods within the meaning of section 8(3)(b) of the Act and we therefore feel they are entitled to avail of concessional rate for purchase of the class of goods referred to in rule 13 abovestated.
Unable to accept the contention of the petitioner that prior to the amendment to the certificate of registration incorporating JCB also in it, the petitioner is entitled to purchase JCB at concessional rate as a "tool" which only was covered by the certificate of registration issued to the petitioner at the time of purchase of the equipment. So much so, inter-State purchase of JCB against issuance of C form prior to inclusion of the same in the certificate of registration is a violation punishable under section 10(b) of the Act for which penalty could be levied in lieu of prosecution. We, therefore, uphold in principle the penalty levied on the petitioner under section 10A of the Act.
We are in agreement with the contention of the petitioner that the offence is only technical. We, therefore, reduce the amount of penalty to ₹ 1 lakh (rupees one lakh only).
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2011 (6) TMI 702
Whether the second sale of branded goods can be treated as deemed first sale only when first sale is not by the brand name holder, no matter the second sale also happens to be made by the owner of the very same brand name under which the goods are manufactured and marketed?
Held that:- For the purpose of section 5(2) inter-dealer sales between the brand name holders should be ignored and the last sale by the brand name holder to the market should be treated as deemed first sale for levy of tax and assessment under section 5(2) of the Act. It is immaterial whether there is one sale or more than one sale among brand name holders within the group all of which should be ignored and the last sale by the brand name holder to the market is assessable as deemed first sale under section 5(2) of the Act. We, therefore, do not find any merit on this ground raised and consequently reject the petitioner's challenge against the assessment confirmed by the Tribunal.
The petitioner is entitled to the relief by way of credit and set-off of tax to the extent the petitioner produces evidence regarding collection and remittance of tax by the first sellers, i.e., the manufacturers of the goods from the petitioner, which are also companies within the same group
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2011 (6) TMI 701
Issues Involved:
1. Entitlement to Form F under the Central Sales Tax Act, 1956.
2. Registration requirements under Section 7(2) of the CST Act and Rule 4(2) of the CST Rules.
3. Nature of the relationship between the petitioner and the principal-whether it is a contract of sale or contract of agency.
4. Authority of the revenue to deny issuance of Form F.
5. Legal precedents and their applicability to the case.
Issue-Wise Detailed Analysis:
1. Entitlement to Form F under the Central Sales Tax Act, 1956:
The petitioner sought quashing of the order dated November 27, 2010, which denied issuance of Form F. The petitioner, a registered dealer under the CST Act, argued that as a consignment agent, it was entitled to Form F for stock transfers from its principal, Mahabir Chemicals, which was registered in another state.
2. Registration Requirements under Section 7(2) of the CST Act and Rule 4(2) of the CST Rules:
The respondents contended that the petitioner was not entitled to Form F as the principal had not obtained separate registration under Section 7(2) of the CST Act. The petitioner argued that the principal, already registered in its own state, need not register again in Tripura where the goods were sold through an agent.
3. Nature of the Relationship between the Petitioner and the Principal-Contract of Sale or Agency:
The respondents argued that the petitioner was purchasing goods from the principal, thus constituting a sale rather than an agency relationship. The appointment letter required the petitioner to make full payment in advance and sell goods at the principal's invoice rate, earning a commission. The court examined the appointment letter and concluded that the relationship was one of agency, not sale, as the petitioner acted as a consignment agent and the advance payment did not alter this relationship.
4. Authority of the Revenue to Deny Issuance of Form F:
The court held that the revenue authority did not have the power to refuse Form F to a registered agent under the CST Act. The court emphasized that the petitioner was registered under the CST Act and the State Act, and thus entitled to Form F. The revenue authority's refusal was deemed unfair and unreasonable.
5. Legal Precedents and Their Applicability to the Case:
The court referred to several precedents:
- Commissioner of Income-tax, Bombay v. S.K.F. Ball Bearing Co. Ltd.: This case supported the petitioner's argument that advance payments did not change the nature of the agency relationship.
- Gordon Woodroffe and Co. (Madras) Ltd. v. Shaik M.A. Majid and Co.: The court distinguished between contracts of sale and agency, emphasizing that the nature of the relationship depended on the terms of the agreement.
- Sri Tirumala Venkateswara Timber and Bamboo Firm v. Commercial Tax Officer: Highlighted the distinction between sale and agency contracts, which the court found relevant to the petitioner's case.
- Assam Company (India) Ltd. v. Commissioner of Taxes, Assam: The court noted that the facts of this case were different and thus not directly applicable.
Conclusion:
The court concluded that the petitioner, being a registered dealer and consignment agent, was entitled to Form F. The revenue authority's refusal to issue Form F was found to be unjustified. The court directed the respondents to issue Form F to the petitioner, emphasizing that the principal's registration in another state sufficed, and the petitioner's advance payments did not alter the agency nature of the relationship. The court also noted that the revenue authority could ask for security if there were concerns about misuse of Form F.
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2011 (6) TMI 700
Whether, in the facts and circumstances of the case, the deletion of penalty levied under section 22(2) of the TNGST Act by the Tribunal is legally sustainable?
Held that:- We have no hesitation in confirming the order of the Tribunal cancelling the levy of penalty. Accordingly, the order of the Tribunal is confirmed and the tax case (revision) is dismissed.
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2011 (6) TMI 699
Whether going by the reassessment proceedings under section 16 of the Tamil Nadu General Sales Tax Act, unless the assessing officer records a definite finding as to the wilfulness on the suppression of turnover, penalty could not be sustained?
Held that:- A reading of the order of the Tribunal shows that it misdirected itself in treating the assessment as one under section 12(2) of the Tamil Nadu General Sales Tax Act. When it is not the case of the Department that the assessment was made under section 12(2) but one under section 16 as a case of reassessment, we fail to understand how the Tribunal considered the assessment as falling under section 12, to sustain the penalty under section 12(3). Considering the fact that the levy of penalty does not satisfy the requirement of section 16(2) of the Tamil Nadu General Sales Tax Act, we have no hesitation in setting aside the order of the Tribunal. It is also relevant to note that the levy of penalty is discretionary and not an automatic concomitant of reassessment.
As far as section 16(2) proceedings are concerned, in the absence of consideration of any materials therein as to the wilful non-disclosure of assessable turnover, we do not find any ground to affirm the view of the Tribunal. Appeal allowed of assessee.
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2011 (6) TMI 698
Whether the order passed by the Karnataka Appellate Tribunal dated October 31, 2008 in S.T.A. No. 66 of 2006, having regard to the facts and circumstances of the case and contents of the agreement in holding that the assessee has right to use 12 vehicles, possession of which was handed-over to M/s. Grasim Industries and wherefore exigible to tax under section 5C of the Act is justified or calls for interference in this revision?
Held that:- Having regard to the concurrent finding arrived at by the assessing authority, appellate authority and the appellate Tribunal that the agreement entered into between the assessee and M/s. Grasim Industries amounts to transfer of right to use of the goods exigible to tax under section 5C is justified and accordingly, we answer the substantial question of law against the petitioner and in favour of the Revenue. Appeal dismissed.
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2011 (6) TMI 697
Whether the average tax liability quantified by the assessing authority in all these appeals is in order and does not require any interference?
Held that:- The aggregate of the preceding three years that is 1993-94, 1995-96, 1997-98 have been taken into consideration while granting the exemption. The assessing authority has rightly interpreted the notifications and which has been upheld by the first appellate authority as well as the Tribunal. The Tribunal has considered the grounds urged therein and has taken a decision that does not call for any interference. The order passed by the Tribunal is just and proper. The assessee has been granted the appropriate relief in terms of the notifications. We do not see any error committed by the authorities that calls for interference. Appeal dismissed.
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2011 (6) TMI 696
Issues: Challenge against exhibit P7 order of assessment based on violation of mandatory procedure and principles of natural justice.
Analysis:
The writ petition challenges the exhibit P7 order of assessment finalized under rule 6(5) of the CST Rules, alleging violation of mandatory procedure and principles of natural justice. The petitioner claims that the notice calling for objections against the assessment proposed was served late, and despite a request for an extension of time due to illness, the assessment was finalized abruptly. The respondent argues that the request for adjournment was denied due to time constraints as the assessment was getting time-barred. The court notes that no proper opportunity was given to the petitioner to raise objections or produce accounts, and the assessment was finalized hastily without notifying the rejection of the adjournment request.
The court emphasizes that assessment proceedings are quasi-judicial and authorities must adhere to principles of natural justice. It finds the impugned order unsustainable due to the lack of proper opportunity granted to the petitioner. Consequently, the court allows the writ petition, quashes the exhibit P7 order, and directs the first respondent to conduct the assessment afresh, providing a reasonable opportunity to the petitioner. The petitioner is instructed to file objections within two weeks of receiving the judgment, and the assessment is to be finalized after a personal hearing within one month of receiving objections. The petitioner is also required to provide a copy of the judgment to the first respondent for necessary action.
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2011 (6) TMI 695
Whether, in the facts and circumstances, the Tribunal is right in deleting the turnover of ₹ 8,87,830 estimated on the basis of survey report and for reasons not legally sustainable?
Whether, in the facts and circumstances, the Tribunal is right in deleting the consequential penalty levied under section 12(3)(b) of the TNG ST Act?
Held that:- In the absence of any of these materials and having regard to the fact that survey was done in respect of only one type of PVC hose pipe, which is of superior grade named Rani Flex, the Tamil Nadu Sales Tax Appellate Tribunal came to the conclusion that the estimation was unsustainable. The issue being a pure question of fact, the order of the Tamil Nadu Sales Tax Appellate Tribunal does not warrant any interference. Consequently, the revision is dismissed
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2011 (6) TMI 694
Whether the specified manufacturer avails of the benefit of exemption in respect of one product only or in respect of all products manufactured by him, the limit of exemption would remain the same, being based upon the total capital investment made by him in establishing the new industry?
Held that:- The Tribunal was, therefore, justified in holding that the sale against forms 17B or 20, as the case may be, defeats the spirit and purpose of the Scheme and the same is in violation of the conditions of the tax exemption certificate and conditions of the Scheme.
The record of the case indicates that no action has been initiated against the petitioner under condition No. 5 of entry 175 for breach of any of the conditions under the Scheme or any of the provisions the Act or the Rules made thereunder. Thus, even the respondents do not appear to have considered the breach committed by the petitioner to be of such serious nature so as to entail the consequences provided under condition No. 5 of entry 175. In the circumstances, the penalty levied by the revisional authority cannot be sustained.
The impugned order of the Tribunal to the extent it upholds the demand for sales tax and interest thereon is confirmed. However, to the extent the impugned order confirms the penalty levied on the petitioner, the same is quashed and set aside. Appeal partly allowed.
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2011 (6) TMI 693
Whether the assessee is liable to pay tax as brand name holder on the sale of products made under brand name/trade mark/ logo under section 5(2) of the Kerala General Sales Tax Act, 1963?
Held that:- The sales made by the assessee-firm is deemed to be the first sales assessable under section 5(2) of the Act. We are also not able to uphold the order of the Tribunal that with the amendment of the definition clause introducing section 2(viaa) by the Finance Act, 2004, the assessee is liable for tax under section 5(2) of the Act only from 2004-05 onwards. What we notice from the definition clause is that it only expanded the meaning of "brand name", which in our view is only clarificatory.
We therefore hold that the amendment to section 2 introducing "brand name" under clause (viaa) is only explanatory or clarificatory to the term "brand name" contained in section 5(2) which was there in the statute from 1998 onwards. We, therefore, allow the revision case by reversing the orders of the Tribunal and by restoring the assessment order. Consequently, the WP(C) filed by the petitioner-assessee will stand dismissed.
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2011 (6) TMI 692
Issues Involved:
- Interpretation of the notification dated July 1, 2008 for compounding on a per machine basis by the Central Excise Department.
- Provisional assessment made by the Trade Tax Department for the period April, 2010 to December, 2010 relating to the assessment year 2010-11.
- Granting of stay on disputed tax by the first appellate authority and the Trade Tax Tribunal.
- Consideration of financial stringency and prima facie merit of the case by the Trade Tax Tribunal.
- Decision on the liability of tax and the need for expeditious disposal of pending appeal.
Analysis:
The revisions were filed under section 11 of the U.P. Trade Tax Act, 1948 against a common order by the Trade Tax Tribunal Bench I, Lucknow. The revisionist argued that a notification from July 1, 2008, allowed for compounding on a per machine basis by the Central Excise Department, and a survey conducted by the Trade Tax Department led to a provisional assessment for the period in question. The first appellate authority had granted a stay of 60% of the disputed tax, which was contested in the second appeal before the Trade Tax Tribunal.
The Trade Tax Tribunal, in its order dated May 21, 2011, granted a stay of 80% of the disputed tax, which the revisionist found inadequate. The Chief Standing Counsel argued that the Tribunal considered financial hardships and aimed to balance equity by granting the stay. However, the court noted that the liability of tax was yet to be determined, and the first appeal was pending. Therefore, the court directed the pending appeal to be decided expeditiously within three months from the date of the order.
As per the court's direction, the revisionist was required to deposit 7% of the disputed tax amount within 30 days before the assessing authority and provide security for the remaining balance. The court emphasized cooperation from both parties in the pending appeal process for its efficient disposal. The judgment aimed to ensure a fair consideration of the case, taking into account both the financial aspects and the need for a timely resolution of the tax liability issue.
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2011 (6) TMI 691
Issues: Rectification of Mistake applications filed by both the revenue and the assessee regarding the rejection of refund claims based on non-registration and the applicability of limitation under Section 11B of Central Excise Act, 1944.
Issue 1 - Refund Claim Rejection based on Non-Registration:
The assessee, a 100% EOU, contended that being deemed registered, the refund claim should not have been rejected for non-registration. However, it was noted that the assessee never explicitly claimed to be deemed registered before any authority. As there was no submission to this effect, the Tribunal found no apparent error in rejecting the Rectification of Mistake application filed by the assessee.
Issue 2 - Applicability of Limitation under Section 11B:
The Revenue challenged the Tribunal's conclusion that the limitation under Section 11B is not applicable to refund claims for Cenvat credit. The Revenue relied on a specific decision and a notification, while the appellant cited a different Tribunal decision to support their stance. After considering the arguments, the Tribunal referred to a case involving M/s. Global Energy Food Industries, where it was held that the limitation under Section 11B does not apply to refund claims under Rule 5 of Cenvat Credit Rules. This decision was based on precedents from High Courts. As the decision in the case of M/s. Global Energy Food Industries was not contradicted by the decision cited by the Revenue, the Tribunal rejected the Rectification of Mistake application filed by the Revenue.
*(Pronounced & dictated in open Court)*
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2011 (6) TMI 690
Issues involved: Eligibility of Cenvat credit on services billed by high sea seller, disallowance of credit by original authority, reduction of penalty by Commissioner (Appeals), dispute regarding invoices/bills not in the name of present importer.
Eligibility of Cenvat credit: The applicant, an importer, purchased goods from a high sea seller, leading to a dispute over the eligibility of Cenvat credit on services billed by Container Agents and shipping lines. The original authority disallowed the credit, imposed penalty, and interest. The Commissioner (Appeals) upheld the decision but reduced the penalty. The advocate for the applicant argued that expenses were incurred for services related to imported goods, even though the bills did not bear the name of the present importer. The learned SDR supported the decision of the Commissioner (Appeals) based on the actual receiver of services being different from the applicant.
Invoices/bills not in the name of present importer: The dispute mainly revolved around invoices/bills being in the name of a party other than the present importer, who purchased goods on a high sea sale basis. The applicant had borne expenses for services related to the imported goods, and service tax was paid by the applicant. The Tribunal found that the services were in connection with the imported inputs utilized by the appellants. As a result, the Tribunal granted a waiver of pre-deposit of dues and stayed the recovery of the same until the appeal was disposed of.
Conclusion: The Tribunal, after considering submissions from both sides, found in favor of the applicant regarding the waiver of pre-deposit of dues as per the impugned order. The Tribunal acknowledged that the services were related to the imported goods and granted relief to the applicant by staying the recovery of dues until the appeal was finalized.
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2011 (6) TMI 689
Recovery of refund granted earlier - freight paid towards transport of goods by road for export - denial on account of nexus - Held that: - only from the custodians, the empty containers can be obtained and get the goods stuffed and they can be sent either to ICD/CFS back for onward export through gateway port or to the gateway port/airport directly depending on the transport system. Getting empty containers is an indispensable activity in the process of export from the place of removal - the expression used in N/N. 41/2007 “in relation to transport of export goods” is wide enough to cover event of transport of empty containers from the yard to the factory for stuffing the goods - refund rightly granted - appeal rejected - decided against Revenue.
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2011 (6) TMI 688
Issues:
1. Inclusion of reimbursed expenses in the assessable value of taxable services.
2. Penalty imposition under various sections of the Finance Act, 1994.
Analysis:
1. The main issue in this case revolved around whether reimbursement of expenses should be considered as part of the assessable value of taxable services, specifically in the context of clearing and forwarding services. The Revenue contended that such expenses should be included as they are intimately connected to the services provided. They cited precedents to support their argument, emphasizing that no taxable service could be performed without incurring such expenses. The original authority's examination of the case was also highlighted by the Revenue.
2. The respondent, on the other hand, argued that the adjudicating authority had erred in its decision, and the appellate authority had rightly reversed the adjudication order. The respondent was accused of intentionally misleading the department by categorizing reimbursed expenses as separate from commission to avoid paying Service Tax. The appellate authority found the respondent liable for penalty in addition to Service Tax and interest. However, upon hearing both sides and reviewing the records, the Tribunal found in favor of the Revenue. They directed that the appellate order be reversed to impose service tax liability on the respondent as per the adjudication order.
3. Regarding penalties, the Tribunal found that there was no evidence to support the claim of intentional evasion by the respondent. The allegation of intentional arrangement with another entity was deemed baseless, leading to the conclusion that penalties under Sections 78 and 75 of the Finance Act, 1994 were unsustainable and should be waived. Additionally, the confusion at the early stage of law implementation was considered a reasonable cause, leading to relief for the assessee against penalty under Section 76.
4. Ultimately, the Tribunal decided to levy the Service Tax demand as per the adjudication order, waive penalties imposed under Sections 78, 76, and 75, and confirm the levy of interest under Section 75. The Revenue's appeal was partly allowed, bringing a conclusion to the case with a detailed analysis of the issues at hand and the Tribunal's decision on each aspect.
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2011 (6) TMI 687
Constitutional vires of charging section 3 of Andhra Pradesh Tax on Entry of Motor Vehicles into Local Areas Act, 1996 challenged
Held that:- Section 3 of the impugned Act does not suffer from any of the infirmities canvassed by the petitioners. The Act is constitutionally valid and within the competence of the State Legislature.
The question whether the vehicles purchased and imported by the petitioners are motor vehicles or not, in view of our conclusions on Part VIII supra, has to be decided at the stage of assessment by the competent officer. Therefore, we deem it appropriate to set aside the impugned assessment orders and remit them to the respective assessing officers. Keeping in view the principles laid down by the Supreme Court as summarized in this judgment, they shall now proceed to consider the contentions on this question alone, if necessary by obtaining an opinion from any Gazetted Officer of the Department of Transport. This exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this Order, whereafter it shall be open to the petitioners to avail of the alternative remedy provided under the impugned Act read with the provisions of the VAT Act. We also give liberty to the petitioners to claim refund of tax over and above 12 per cent if it is paid by any of the petitioners. If any such claims are made, the respective assessing officers/Government authority shall dispose them of expeditiously and refund the amount of excess entry tax promptly.
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2011 (6) TMI 686
Whetehr the exemption granted is only for oiled cake and not for de-oiled cake?
Held that:-The contention of the learned counsel appearing for the respondent that oiled and de-oiled cake are one and the same for various reasons as contended is wholly unsustainable. It cannot be contended that both the items oiled and de-oiled cake are one and the same especially in view of the fact that both the commodities are different and hence we are unable to accept the contention of the assessee.
the petition is allowed. The order dated May 15, 2008 passed by the Karnataka Appellate Tribunal in STA No. 335 of 2007 is hereby set aside and the order passed by the first appellate authority dated November 30, 2006 in No. CST. AP. 1/2006-07 is hereby restored the petition is allowed. The order dated May 15, 2008 passed by the Karnataka Appellate Tribunal in STA No. 335 of 2007 is hereby set aside and the order passed by the first appellate authority dated November 30, 2006 in No. CST. AP. 1/2006-07 is hereby restored
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2011 (6) TMI 685
Duty demand - Redemption fine - SSI exemption under Notification No. 176/77-C.E., dated 18-6-1977 - Suppression of facts - Extended period of limitation - Held that:- exemption notification are to be complied with strictly and the substantial compliance means the actual compliance in respect to the substance essential to every reasonable objective of the statute. Therefore as contended by the appellants that they have substantially complied with the conditions of the exemption Notification is not acceptable and the appellants are required to comply with the conditions of exemption notification strictly.
Whether the Assistant Collector have the power to issue show cause notice or not for which we have to go through Section 11A of the Act which was enforced at the time of issuance of the show cause notice - Held that:- As per Section 11A, the Central Excise officer was empowered to issue show cause notice - There is no merit in the contention of the learned Advocate that the Assistant Collector was not having any power to issue show cause notice.
Whether the show cause notice can be issued under Rule 10 or Rule 10A which were omitted w.e.f. 6-8-1977 and new Rule 10 was enforced from 6-8-1977 to 16-11-1980 - Held that:- The show cause notice was issued on 2-6-1981. By invoking the provisions of Section 38A, the revenue has power to issue show cause notice under Rule 10/10A during the relevant period.
Appellants were claiming the SSI exemption under Notification No. 176/77-Central Excise, dated 18-6-1977 on the ground that the parts and accessories of motor vehicles were supplied to M/s. Ideal Jawa (I) Ltd., and M/s. Bajaj Auto Ltd., for further use in the manufacture of two wheelers, subject to Chapter X Procedure, value of these goods had to be excluded for the purpose of allowing exemption under Notification No. 89/79-C.E., dated 1-3-1979, 167/79-C.E., dated 19-4-1979 as amended by Notification No. 187/79-C.E., dated 10-5-1979. If the value of exempted goods is excluded duty liability would come down to be marginal. Therefore, the appellants were under an Impression/bona fide belief that they have complied with the conditions of the exemption notification substantially by obtaining certificates from M/s. Bajaj Auto Ltd. and Ideal Jawa (I) Ltd., the exemption is available to them.
Therefore, in the absence of any of the ingredients of fraud, collusion, wilful misstatement, suppression of facts and contravention of provisions of Central Excise law with an intent to evade duty, the extended period of limitation is not invokable. Therefore, we hold that in this case the extended period of limitation is not invocable. Therefore, the demands for the period 18-6-1977 to 31-10-1980 are barred by limitation - Matter remanded back - Decided in favour of assessee.
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2011 (6) TMI 684
Duty demand - Lack of evidence - Dummy unit - Whether there was specific defence raised before the adjudicating authority that M/s. New Vision was dealing with the products manufactured by other manufacturer also - Held that:- There is no explanation forthcoming as to what prevented the appellants from seeking assistance of the adjudicating authority for issuance of a summons to the Proprietor of the said firm to produce such documents if they were so relevant on the point in relation to the appellants case - in the absence of sufficient cause being shown for non-production of the document in question either before the adjudicating authority or even before the lower appellate authority, and no sufficient cause being shown for delay in production of the documents, nor relevancy established - Decided against assessee.
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