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Showing 401 to 420 of 1328 Records
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2014 (4) TMI 929
Deletion of deduction u/s 10B of the Act Held that:-The revenue has not disputed the point that the assessee got approval as 100% EOU as per approval dated 27.01.1997 CIT (A) has held that the AO was completely in error in holding that since the assessee started its business in AY 1992-93, then the prescribed period of 10 years for the purpose of exemption u/s 10B of the Act had come to an end by AY 2001-02 - section 10B envisages setting up of export oriented undertaking which is altogether different and distinct from setting up of a normal commercial activity unit - The AO has not controverted the fact that the assessee company established 100% EOU in FY 1997-98 for exporting of computer software Relying upon LEGATO SYSTEMS INDIA (P) LTD. Versus INCOME TAX OFFICER [2005 (7) TMI 663 - DELHI HIGH COURT] - the CIT(A) rightly granted relief to the assessee by directing the AO to grant exemption u/s 10B of the Act for the assessee Decided against Revenue.
Deletion on account of TDS Held that:- The assessee company filed some proof explaining the difference in question which could not be confronted to the AO, neither during the assessment proceedings nor during the appellate proceedings - The issue is related to the reconcilement of the difference thus, the matte is required to be remitted back to the AO for fresh adjudication Decided in favour of Revenue.
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2014 (4) TMI 928
Withdrawal of registration u/s 12A of the Act Acceptance of capitation fee - Whether the acceptance of capitation fee can be a ground for cancellation of registration granted u/s 12A by invoking Section 12AA(3) of the Act Held that:- When the assessee is carrying on a number of educational institutions approved by the Central and State Government Board and University then it cannot be said that the activity of promotion and imparting education is not genuine Relying upon Vidyavardhini Vs CIT [2012 (4) TMI 306 - ITAT MUMBAI] - the cancellation on the ground of receipt of capitation fee itself is not sustainable - mere accepting the capitation fee cannot be brought into the scope of Section 12AA(3) if the prominent activity of the assessee are not doubted being imparting of education and promotion of education.
The Commissioner has also accepted the fact of the activity of the assessee that the assessee is engaged in the educational activity but he has opined that the educational activity has been converted into commercial venture - When nothing has been brought on record to say that the assessee has carried out the activities other than imparting and promoting the education then the cancellation of registration on the ground of accepting the capitation fee which has been used for the purpose of achieving the objects of the assessee is not sustainable thus, the order of the Commissioner is set aside and the registration u/s 12A is restored Decided in favour of Assessee.
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2014 (4) TMI 927
Deletion on account of bogus sundry creditors Held that:- There was no evidence to show that purchases were paid from disclosed sources of money - assessee had failed to produce any purchase bill or records in support of the purchases - Out of the three creditors, M/s. RVPL was not only not existing during the period when assessee claimed to have made purchases for it, but it had also denied any transaction with the assessee at all. It's Directors even stated that they were willing to pay 50% of the money to the Tax Department, if the assessee was willing to pay the amount shown as payable to them.
Assessee was given an opportunity for producing the creditors and examining them. Assessee did not avail such opportunity there was no fault in the order of AO for coming to a conclusion that the transactions, effected to the extent of the credit balances in the names of these three parties were not genuine and were bogus - assessee had definitely effected purchases, but not to the extent shown by it, as proved by the existence of bogus creditors AO had not at any point of time stated that he was making the addition under section 68 of the Act - He never considered the amount as unexplained cash credit - He simply disbelieved the purchases to that extent thus, CIT(A) fell in error, when he deleted the addition and directed a best of judgment assessment after rejecting the books, especially when AO had not done so thus, the addition made for bogus sundry creditors is upheld Decided in favour of Revenue.
Addition of bogus loan credit Held that:- The assessee had discharged the primary onus resting on her, by producing confirmation letters, PAN of the concerned parties - CIT(Appeals) has clearly brought out that concerned parties were having sufficient capital balance as on 31.03.2008 for justifying it - This has not been rebutted by the Revenue thus, there is no reason to interfere with the order of CIT(A) Decided against Revenue.
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2014 (4) TMI 926
Transfer pricing adjustment Determination of ALP Transaction of Royalty for use of trademark and technical know-how Held that:- The payment of royalty on technical knowhow, the assessee has been paying to its parent AE right from 1993, as, other group companies are paying across the globe - It has been accepted by the TPO that the payment does not affect the profitability of the assessee - In any case the payment of royalty on technical knowhow is at par with the similar payments from the group companies in other countries & region - Besides this, the payment is made as per the approval given by the RBI and SIA, Government of India - there cannot be any scope of doubt that the royalty payment on technical knowhow is not at arms length - For Royalty payment on trademark usage, the assessee, is paying a lesser amount, if the payments are compared with the payments towards trademark usage, by the other group companies using the Brand Cadbury in other parts of the world - the royalty payment on trademark usage is within the arms' length and does not call for any adjustment thus, the order of the CIT(A) upheld Decided against the revenue.
Allowability of 50% of expenses - Renovation of office complex and other expenses to electric installation Held that:- The CIT(A) taking into consideration the submissions placed, along with the evidence and details, pertaining to the issues of various renovation jobs, allowed benefit to the extent of 50% on the interior designs work and supply and installation of electrical items - the CIT(A) has allowed only 50%, though, on adhoc basis, the expense, which are quite reasonable thus, the order of the CIT(A) upheld Decided against the revenue.
Disallowance of expenses on rural development Held that:- The assessee has placed reliance on CIT v Madras Refineries Ltd. [2003 (11) TMI 47 - MADRAS High Court] - this case has not been considered by the CIT(A) - the issue should be held against the assessee, following the order of the coordinate Bench in the preceding year, but the fact that the assessee factory is located in the village belts at Induri, near Mumbai and Malana, in Madhya Pradesh - The upliftment of these areas, though not directly relatable to the business of the assessee but is certainly a matter of good corporate governance through corporate citizen, which is encouraged by the government thus, in the interest of justice and the current need for being a better corporate citizen, the issue is remitted to the file of the AO, who shall re-examine the nature of expenses Decided in favour of Assessee.
Miscellaneous income and trade discounts Held that:- The decision in Cadbury India Limited Versus Addl. Commissioner of Income tax, Range-5(1) Mumbai [2012 (12) TMI 682 - ITAT, Mumbai] followed - Miscellaneous income which included trade discounts, miscellaneous sales, sales tax, excise duty etc. had to be included in the total turnover except the sales tax and excise duty which did not contain an element of turnover Decided in favour of Assessee.
Reduction of gross interest - Computation of deduction u/s 80HHC Held that:- The decision in Cadbury India Limited Versus Addl. Commissioner of Income tax, Range-5(1) Mumbai [2012 (12) TMI 682 - ITAT, Mumbai] followed - 90% of net interest income is required to be reduced after deducting expenses incurred having nexus with earning of interest income thus, the matter is remitted back to the AO for working out 90% of net interest income Decided in favour of Assessee.
Payments made to third party manufacturers Held that:- The decision in Cadbury India Limited Versus Addl. Commissioner of Income tax, Range-5(1) Mumbai [2012 (12) TMI 682 - ITAT, Mumbai] followed - Assessee was following mercantile system of accounting as per which contractual liability accrued on the date of its ascertainment and was allowable in the year of ascertainment - the liability was pending and therefore, it had not been incurred during the year thus, the order of CIT(A) disallowing the claim is upheld - Decided against Assessee.
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2014 (4) TMI 925
Transfer pricing - Determination of ALP - Selection of comparables Held that:- As far as assessee's six comparables are concerned, 4 comparables selected by Assessee are not comparable either on functional profile or on other parameters as considered by TPO and accepted by Assessee after CIT(A)'s order - There is no dispute with reference to two comparables i.e. Nucleus Net Soft & GIS India, whose operating profit by cost is at 16.87%, which is accepted as comparable by Assessee and TPO - The other company, which is also accepted by Assessee and TPO are Mercury Outsourcing Management Ltd., whose operating profit by cost is at 5.88% - when TPO and Assessee accepted a particular company as functionally comparable and when assessee has not agitated before the CIT(A), it cannot be excluded from list of comparables - CIT(A) may have original jurisdiction coterminous with AO, but, when the issue is not agitated, it cannot be reviewed on selection of comparables - He does not have power of review or revision on order of AO which was with CIT(Admn.) u/s 263/ 264 - thus, the comparable cannot be excluded.
Spanco Telesystems & Solutions Ltd. Held that:- Both TPO and Assessee have agreed that profit margin is reasonable for the year and no specific objection was raised either on the operating profit margin on the related party transactions, which were decided in another case - Assessee has not specifically raised any objection on the comparable before the learned CIT(A), there is no reason to exclude the same from the list of comparables ultimately approved by the TPO - the AO is directed to include this comparable as it was mistakenly excluded by the CIT(A), without any discussion.
Wipro BPO Solutions Ltd Held that:- The exclusion of Wipro BPO Solutions, whose operating profit over the cost is less than the companies accepted as comparables by Assessee, is not proper the assessee's objections cannot be accepted that exclusion of Wipro BPO Solutions on the basis of the turnover alone - the order of CIT(A) is upheld as far as the issue of profitability vis-ΰ-vis scale of operations/turnover is concerned the view expressed by the TPO is accepted that it will not have significant effect on the profitability of a company, as far as the BPO sector is concerned it would be appropriate to include the above company as comparable for the purpose of determining the average PLI in the relevant assessment year thus, the AO is directed to work out the addition Decided partly in favour of Assessee.
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2014 (4) TMI 924
Nature of assessee Charitable institution or not u/s 12A of the Act Exemption u/s 10(23C)(iiiad) of the Act - Held that:- The assessee exists more than 127 years and the college is established for the purpose of Arabic language, literature and culture and the college is affiliated to Madras University and simply because the students have to read the Quran and do prayers and have specific dress code, it cannot be said that it is not an educational institution - all activities are necessary for the educational institution to maintain discipline and equality among the students - the educational institutions have their own code of conduct to maintain the discipline to achieve ultimate object of education CIT(A) also that the assessee is an educational institution - the assessee is an educational institution and 12A registration is not required for the relevant assessment year and eligible to claim exemption u/s 10(23C)(iiiad) of the Act.
Monetary limitation u/s 10(23C)(iiiad) of the Act Held that:- CIT(Appeals) has rightly classified the annual receipts during the financial year 2003-04 at Rs. 51,86,887/-being the annual and recurring income of the assessee - The sale proceeds of land and bonds which are capital receipts in nature, are not recurring income and are once in a lifetime Relying upon Commissioner of Income-tax Versus St. Mary's Malankara Seminary [2012 (3) TMI 263 - KERALA HIGH COURT] - CIT (A) has rightly classified the annual receipts and granted exemption to the assessee u/s 10(23C)(iiiad) of the Act - thus, the assessee is an educational institution and the annual receipt of the assessee is below Rs. 1.00 crore and eligible for deduction u/s 10(23C)(iiiad) of the Act Decided against Revenue.
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2014 (4) TMI 923
Disallowance of entrance fees paid to the Bangalore Club Held that:- Necessary materials have been produced before the AO as well as before the DRP with regard to nature of payment - the AO and the DRP have stated that no documentary evidences were produced before them to take a positive view in favour of the assessee, the issue was decided against the assessee company - no details are placed with regard to the nature of the payment, the issue cannot be decided on merits - one more opportunity need to be given to the assessee to prove its case - the assessee is directed to produce documentary evidence with respect to payment of entrance fee to Bangalore Club and nature and break up the expenses thus, the matter is remitted back to the AO for fresh consideration Decided in favour of Assessee.
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2014 (4) TMI 922
Maintainability of appeal - Denial of rebate claim - Section 35B - Held that:- Sec.35EE is in respect of revision by Central Government under the Central Excise Act. In Sec.83 of the Finance Act, the provisions of Sec.35EE of the Central Excise Act were included amending thereby revision lies to the Central Government whereas as per Sec.86, it covers appeal to the Appellate Tribunal - There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner( Appeals) in respect of the rebate-claim - There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner( Appeals) in respect of the rebate-claim. We find force in the contention of the Revenue that the appeal is not maintainable - Decided against assessee.
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2014 (4) TMI 921
Business Auxiliary Services - Export - Receipt in INR through FIRC - Non Receipt of remuneration towards their services in convertible foreign exchange as per Rule 3(2) of the Export of Services Rules, 2005 - Held that:- only objection of the Revenue is that the payment towards the service rendered by the respondent has not been received in convertible foreign exchange. When Reserve Bank of India permits that the same can be received in Indian Rupees through FIRC, in that situation, I am convinced with the argument advanced by the learned Advocate for the respondent that the payments have been received through proper channel. Prima facie, in these circumstances, the Revenue has failed to make out a case for stay of operation of the impugned order - Stay denied.
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2014 (4) TMI 920
Demand of service tax - Mandap Keeper Services - Bar of limitation - Held that:- services rendered by the mandap keepers as a caterer would also be liable to service tax under the category of Mandap Keeper Services'. The decision relied upon by the consultant of the hon'ble High Court of Karnataka is with reference to Outdoor Catering Services' rendered in an aeroplane and the other decision of the Tribunal in the case of Daspalla Hotels Ltd it is in respect of evidence relied upon by the appellant with regard to VAT paid on the value of food and beverages sought to be taxed under Convention Services'. In the present case, the demand is not under any of these services but on Mandap Keeper Service' and as can be seen from the decision of the hon'ble apex Court in the case of Tamil Nadu Kalyana Mandapam Assn. (2004 (4) TMI 1 - SUPREME COURT OF INDIA), service tax liability is attracted in case the mandap keeper also perform catering services.
Appellant did not declare to the department the non-inclusion of food charges in the consideration received nor did they declare the receipt of consideration in the ST-3 returns. Thus, there is a willful mis-statement of facts with an intent to evade tax on the part of the appellant. Therefore, the extended period of time has been rightly invoked to confirm the Service Tax demand and we hold accordingly.
As regards the penalty imposed under Section 78, the penalty under the said Section would apply only when there is a suppression of facts or willful mis-statement of fact with an intent to evade Service Tax on the part of the assessee. In the present case, from the records, it is clearly seen that prior to 1.4.2005, the appellant was discharging Service Tax correctly in accordance with law by paying Service Tax on the entire consideration received for both catering charges as also banquet hall charges w.e.f. 1.4.2005, the assessee deliberately split up the charges by issuing the separate bills by splitting into catering charges and banquet hall charges. This conduct of the assessee clearly reveals the intention to evade payment of Service Tax on the charges collected as catering charges. Therefore, penalty under Section 78 is clearly imposable. However, penalty under both Section 76 and 78 are not imposable after 10.5.2008 when the provisions were amended. Therefore, for the period after 10.5.2008, no penalty would be imposable under Section 76 of the Finance Act, 1994.
Matter has to go back to the adjudicating authority for re-computation of the Service tax demand and re-determination of consequential interest and penal liabilities - Decided partly in favor of the assessee.
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2014 (4) TMI 919
Demand of service tax - commercial coaching or training center service - development of personality and any personal skills - Penalty under Sections 76, 77 and 78 - Held that:- activity of the appellant is liable to tax under the provisions of the Finance Act, 1994 as section 65 (27) of the Act provides imparting of coaching or training in any skill or knowledge or lessons on any subject or field other than sports. Thus, the activity of the appellant is squarely covered under the category of commercial coaching or training' and liable to Service Tax.
Waiver of penalty u/s 80 - Appellant is not engaged in providing commercial coaching as ordinarily understood i.e. coaching for particular exams or training in the subject like Engineering or Management etc. Further, the appellant being a non-profit organization established under Section 25 of the Companies Act, had reasonable belief that they are not a commercial institute or training centre, which issue was clarified by the Finance Act, 2010 by insertion of explanation with retrospective effect. It is also relevant that several decisions were rendered in favour of the assessees under similar facts and circumstances of being non-profit or charitable in nature. Such cases were challenged before the Apex Court. The Apex Court, during the pendency of the appeals in view of the amendment by the Finance Act, 2010 remanded the appeals for fresh adjudication in view of the amendment. Thus, it is found that there is no contumacious conduct or active disregard of the provisions of law in complying with the provisions of the Act or Rules. Thus, penalties imposed under Sections 76, 77 and 78 are set aside, there being reasoned cause for non-compliance and non-payment of tax as provided under Section 80 of the Act.
Penalty waived while confirming the demand of service tax - Decided partly in favour of assessee.
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2014 (4) TMI 918
Whether the impugned judgment pertaining to the exemption under the KST Act even after holding that the amount collected by the petitioner from its customers as deposit in the case does not amount to collection of tax' is sustainable in law Validity of judgment Withdrawal of Exemption Scheme - Sale of All Steel Radial Tyres for heavy vehicles (Trucks & Buses) - Collection of tax Held that:- There was no question of assessee collecting tax from the customers between 01.01.2000 and 08.10.2000 as deposit - Since during this period in view of withdrawal of the exemption vide Notification dated 01.01.2000, the customers were liable to pay tax and it was rightly collected by the petitioner and deposited with the Department - That appears to be the reason why in the Government Order dated 25.10.2000 it is stated that eligibility for exemption from payment of tax would be available if the tax is "not collected" on sale of All Steel Radial Tyres for heavy vehicles (Trucks & Buses) - Admittedly, in this case, the tax was collected by assessee and it was deposited with the Department and therefore, they cannot seek any benefit whatsoever of the Government Order dated 25.10.2000 - The authorities below have considered and appreciated the contentions urged on behalf of the petitioner in proper perspective and this Court do not find any reason to interfere with the same Decided against Assessee.
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2014 (4) TMI 917
Deduction of tax at source by Railways from their bills for the work executed by the petitioner in relation to the work contract u/s Section 47 - Held that:- When the remedy of filing an application is provided under Section 47 then it is this statutory remedy which must be resorted to assessee in order to resolve the dispute of the nature raised herein rather than to take recourse to the extraordinary remedy of writ petition under Article 226 of the Constitution in the High Court Assessee granted liberty to take recourse to the remedy available to them u/s 47(b)(i) Petition disposed off Decided against assessee.
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2014 (4) TMI 916
Whether the Appellate Authority can interfere in the order passed by the Assessing Authority that the penalty imposed is excessive, whether such view is sustainable in view of Section 78(5) of the RST Act - Held that:- Judgment in Guljag Industries Versus COMMERCIAL TAXES OFFICER [2007 (8) TMI 344 - SUPREME Court] followed - The compliance of the provisions of the Act, have to be carried in letter and spirit and when there is requirement of carrying declaration form with the goods then the mere plea that the respondent was not aware of the fact of Notification, is not proper such a generalised user of word were not aware is not sufficient - compliance of Rule 53 ought to have been made - The Rice falls in the category of notified goods thus there was requirement of carrying declaration form with the goods - The dealers ought to have carried the declaration form with the goods and came heavily on the dealers who though carried the declaration form but were blank or/and incomplete - Such declaration forms were non-est and Department was correct and justified in imposing penalty u/s. 78(5), whereas it is a non carrying of the declaration form - If declaration form is produced later on, on demand then plea of the assessee could be accepted but neither there was a request by the respondent-assessee nor he produced the declaration form - The revision petition is allowed - The impugned orders passed by the lower Appellate Authorities are quashed and set-aside and reversed - The order of imposition of penalty passed by the ACTO (FS), is maintained - The stay application also stands disposed of Decided in favour of Revenue.
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2014 (4) TMI 915
Liability of entry tax to the manufacturer of sugar or the taxing department and for releasing the same in view of the policy and notification issued in exercise of powers u/s 4 (B) of the U.P. Tax on Entry of Goods Act, 2000 exempting form entry tax on non-levy sugar manufactured in a new unit effect of exemption being taken away - Held that:- The State has not been able to indicate any supervening public interest, which required the scheme to be withdrawn and that the petitioners are entitled to the limited protection of the exemptions at this stage, which they were enjoying on the date when the policy is said to have been revoked i.e.4th June, 2007 Directed that no coercive steps shall be taken against the petitioners for realization of the administrative charges, entry tax, VAT and purchase tax, till the date of listing - writ petition dismissed Decided in favour of assessee.
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2014 (4) TMI 914
Duty demand - Whether the amount of central excise duties which is for the period prior to 2005, can be recovered from the petitioner or not - Held that:- In pursuance of the notice referred herein above, the petitioner has filed the reply, on which no order has been passed and without passing any order, the respondent no. 1 proceeded to attach 300 bags of sugar, which was not justified. However, in view of the interim order on furnishing of security, 300 bags which were attached, have been released in favour of the petitioner - the writ petition is disposed of directing the respondent no. 1 to adjudicate the issue whether the petitioner is at all liable for the payment of excise dues which accrued prior to 28th May, 2005. The petitioner is directed to file certified copy of this order before the Assistant Commissioner within a period of two weeks and the respondent no. 1 is directed to pass appropriate order in accordance with law after giving opportunity of hearing and considering the submissions of the petitioner by a reasoned order in accordance with law. In case, if on adjudication, it is found that the petitioner is not liable for the payment of any central excise dues, the securities furnished by the petitioner be discharged - Decided in favour of assessee.
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2014 (4) TMI 913
Duty demand - Option given under Rule 96ZO(3) - whether the Assessing Authority can exercise the discretion to levy the lesser amount of penalty than the amount provided under Rule 96 ZO(3) - Held that:- The validity of Rule 96 ZO is not under consideration before us. The default is also not in dispute. Admittedly, the appellant has not deposited the amount within the specified period and has deposited the amount along with the interest beyond the specified period, therefore, the appellant is liable for the penalty under Rule 96 ZO(3). The Assistant Commissioner has levied the penalty at Rs.20,000/-. - wherein it has been held that Rule 96(ZO(3) provides the levy of equal amount of penalty to the duty short paid/unpaid and authority has no discretion to impose the penalty lower than the amount of duty involved - Decided against assessee.
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2014 (4) TMI 912
Condonation of delay - Held that:- On perusal of averments made in the application, it reveals that it is a case of negligence and latches on the part of the office of the Union of India and on the part of the office of Assistant Commissioner as well. The limitation for filing appeal is 180 days, which is quite sufficient. It is unfortunate that during the aforesaid period, the appeal could not be properly prepared and filed. The reason given in the application are not supported by any documents and affidavit. Therefore, the same cannot be accepted. - In paragraph 6 of the application it is stated that appeal was presented before the Registry on 20.02.2006, which is wrong. In fact, on 20.02.2006, it was got reported by the Stamp Reporter and has been presented on 06.03.2006. There is no explanation for further delay from 20.02.2006 to 06.03.2006 - Condonation denied.
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2014 (4) TMI 911
Denial of rebate claim - Application of corrigendum notification - Notification No. 93/2004-Cus dated 10.09.2004 - Held that:- it is not the case of application of an exemption notification itself but the effect of corrigendum notification issued in respect of an earlier exemption notification admitting apparent omission therein necessitating the issuance of correction/ corrigendum notification. Therefore, principle applied herein would be different - corrigendum notification dated 17.05.2005 itself says that it is a corrigendum in notification dated 10.09.2004 and, therefore, there is no reason to treat this corrigendum effective from the date the notification dated 10.09.2004 was issued wherein this corrigendum (correction) has been made. The respondents-authorities having taken a contrary view, therefore, have committed a manifest error of law - The revisional order dated 24.08.2009 confirming Commissioner (Appeals) order as also the Commissioner (Appeals) order dated 22.11.2006, are hereby quashed and the orders granting rebate passed by Assistant Commissioner are hereby restored and confirmed - Decided in favour of assessee.
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2014 (4) TMI 910
Stay application - appeal is admitted or the following two questions of law :
(i) Whether in the case, where the rate of duty is specific, the place of removal would be factory gate or the customer premises.
(ii) Whether the authorities below have confirmed the demand after dis-allowing the credit on an issue, which was not proposed in the show-cause notice
Till further orders of the court, the operation of the order dated 18.11.2013, so far it relates to remand shall remain stayed.
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