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Showing 81 to 100 of 2121 Records
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2019 (2) TMI 2050
Dishonor of Cheque - legally enforceable debt or not - signature in the pro-note - age of the ink used in signature - section 138 of NI Act - HELD THAT:- The very defence of the accused while admitting his signatures on the pro-note and cheque by saying routed from his account in saying as a security in relation to a loan relating to the College of the Society to which the complainant was by then Treasurer and those blank documents of him even available with him are misused and those are not supported by consideration and there is no any legally enforceable debt and it requires determination of the age of the ink of the signatures on the pro-note and debt stated given at one time by him.
In view of the above legal position and from the technology available, it is easy to determine the age of the signature on pro-note one time of the signature respectively admittedly of the accused to probablise any iota of said defence of the accused, which is a valuable right of defence of the accused from reverse onus clause once the cheque routed from his account with his signature admitted as per Rangappa and Mohan and from Nagappa and Kalyani Bhaskar supra, such valuable right of defence of the accused from the request to send the documents to expert cannot be shunned by the Courts, to his prejudice.
The dismissal order of the lower Court is set aside and the revision is allowed.
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2019 (2) TMI 2049
Termination of services of workman Shri Mahendra Prasad Jakhmola, s/o Late Shri Vachaspati Jakhmola, Helper by the employer, w.e.f. 13.11.2001 - entitlement of benefit/relief the concerned workman - HELD THAT:- What is clear from the evidence that was led by the parties is that the gate passes were issued, as has been stated by the appellant’s witness, only at the request of the contractor for the sake of safety and also from the administrative point of view. The idea was security, as otherwise any person could enter the precincts of the factory. This evidence was missed by the Labour Court when it arrived at a conclusion that a direct relationship ought to be inferred from this fact alone.
The argument that the contractor, in the facts of the present case, gets only a 10 per cent profit and nothing more, is again an argument that needs to be rejected in view of the clear and unequivocal evidence that has been led in this case. The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned - it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL.
Appeal allowed.
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2019 (2) TMI 2048
CENVAT Credit - inputs - storage charges paid for import, for purchase of inputs namely polypropylene glycol, etc. - whether the appellant are entitled to cenvat credit on such storage or warehousing charges paid on inputs? - HELD THAT:- Rule 2(k) of Cenvat Credit Rules defines input, means goods used in the factory by the manufacturer of the final product. Admittedly, the warehouse or the storage charge paid by the appellant is part of the input cost. Accordingly, such charges are essential and accordingly it is held that the appellant is entitled to avail cenvat credit on storage or warehouse charges incurred in the course of acquisition of inputs.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 2047
Compounding of offences punishable u/s 276B r.w.s.278B - admitted default in deposit of TDS - - Rejection of Application for compounding - HELD THAT:- As the petitioner contends that the petitioner deposited the default in TDS prior to the issuance of any notice and this very issue is pending consideration before this Court in SLP(C)[2015 (12) TMI 1875 - SC ORDER]
Issue notice. In the meantime, the operation of the impugned order shall remain stayed.
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2019 (2) TMI 2046
Bogus and unexplained cash credit u/s 68 - loan transactions entered treated as bogus - addition on the basis of the investigation of the department - HELD THAT:- AO has not concluded the investigation and without going into the documents furnished by assessee treated the unsecured loan as unexplained. From the documents and confirmation filed by the assessee contains that the transaction is through bank channels and even the entry in the account of Hema Trading Company Pvt. Ltd. is given through Bank channel hence this entry cannot be treated as unexplained in the given facts and circumstances of the case. Accordingly, we delete the addition and allow the appeal of the assessee.
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2019 (2) TMI 2045
Income deemed to accrue or arise in India - existence of a Permanent Establishment (PE) in India - Liaison Office at Bombay - India–Japan Tax Treaty - assessee is a company incorporated in Japan as allowed by the Reserve Bank of India to open a Liaison Office (LO) at Bombay for liaison work with a condition that no business will be carried out by the company and no income will be earned by the company through the LO - HELD THAT:- As, on the basis of the facts and evidences available on record, which are very much the same in the impugned assessment year, the Tribunal ultimately concluded that there is nothing on record to prove that the Liaison Office at Mumbai was functioning as an independent profit centre to constitute as PE of the assessee. While coming to such conclusion, the Tribunal also took note of the allegation of the Assessing Officer that the Liaison Office has violated the permission granted by the RBI with regard to conducting its activities and which will be taken up by the Assessing Officer with the RBI. In this context, the Tribunal observed that since there is no adverse report or action taken by the RBI against the assessee, it has to be accepted that the Liaison Office was performing its activities in accordance with the permission granted by the RBI. It is relevant to observe, same view was expressed by the Tribunal while deciding identical issue in assessee’s own case for assessment year 2007–08.
Tribunal has taken a conscious view that such impounded documents do not establish the fact that the Liaison Office is acting as a PE of the assessee, such decision of the Tribunal being purely on the basis of facts obtaining from the impounded documents, which also forms the basis for addition in the impugned assessment year, respectfully following the view expressed by the Tribunal in the preceding assessment years in the orders referred to above, we hold that the Liaison Office at Bombay does not constitute a PE of the assessee under Article–5 of Indian–Japan Tax Treaty. Hence, no income of the assessee can be brought to tax in India. Accordingly, we delete the addition made by the Assessing Officer. Grounds no.1, 2 and 3, are allowed.
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2019 (2) TMI 2044
Income of the Permanent Establishment (PE) - Income attributable to its agency PE again - appellant before us is a resident of Singapore and has business activities in India - Admittedly, it has appointed its 100% owned subsidiary, Hempel India as a sales agent, who is rendering sales support services - HELD THAT:- As per the assessee, once transfer pricing analysis of the transaction between assessee and its agent in India has been undertaken, there is no further need to attribute profits to the agency PE so long as the remuneration to the Indian agent has been held to be at an arm's length price. Undoubtedly, the proposition sought to be canvassed by the assessee has the approval of Hon'ble Supreme Court in the case of M/s. Morgan Stanley & Co. Inc [2007 (7) TMI 201 - SUPREME COURT]. The judgment of the Hon'ble Bombay High Court in the case of SET Satellite Singapore Pte Ltd. [2008 (8) TMI 96 - BOMBAY HIGH COURT] is also on the same lines in terms of which it is safe to draw the premise that if appropriate arm's length price has been found to have been applied and paid, nothing more would be left to be taxable in India by attributing further income to the PE of the foreign enterprise. The aforesaid proposition, in our view, is fully attracted in the present case having regard to the fact that for the instant assessment year, the commission has been found to be at arm's length price in the hands of the recipient Indian subsidiary, i.e. Hempel India.
The ratio of the judgment of the Hon'ble Delhi High Court in the case of BBC Worldwise Ltd. [2011 (9) TMI 548 - DELHI HIGH COURT] is fully attracted in the present case and, therefore, the addition to the returned income is clearly untenable in the facts of the instant case. We hold so. - Decided in favour of assessee.
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2019 (2) TMI 2043
Income accrued in India - PE in India - As per CIT-A addition has been wrongly made - grievance of the Revenue is that the CIT(A) ought to have appreciated that the PE of the assessee in India is a separate entity and interest paid by the Branch to its Head Office is liable to be taxed in the hands of the assessee in India as income - HELD THAT:- This aspect of the matter has indeed been dealt with by the Tribunal vide its order [2014 (4) TMI 733 - ITAT MUMBAI] in favour of the assessee and since the order of the Tribunal continues to hold the field, as it has not been altered by any higher authority, the Ground raised by the Revenue is liable to be dismissed. We hold so.
Addition u/s 40(a)(i) - whether CIT(A) is correct in holding that the provisions of section 40(a)(i) do not apply without appreciating that the interest was chargeable to income? - HELD THAT:- It is not Sec. 40(a)(i) of the Act which has been invoked by the Assessing Officer in order to bring to tax the impugned interest income. Pertinently, in this year, the impugned interest income has been brought to tax on the ground that it accrues or arises in India on account of assessee’s PE in India. In contrast, in the earlier year, Sec. 40(a)(i) of the Act was invoked to disallow the expenditure represented by the interest paid by the Indian branch to the Head Office on the ground of non-deduction of tax at source, whereas in the instant year the said expenditure has been explicitly allowed by the AO after noticing that the requisite tax has been deducted at source. We are only trying to bring out the aforesaid to point out that the Ground of appeal has been raised by the Revenue without considering the relevant facts of the instant year. Be that as it may, the aforesaid Ground is liable to be dismissed.
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2019 (2) TMI 2042
TDS u/s 194A - interest on the compensation awarded by the Motor Accident Claims Tribunal - HELD THAT:- Pursuant to notice issued on the last date of hearing to the newly added respondent no. 4, i.e. the Department of Income Tax through its Commissioner, TDS Circle, Mumbai, Mr. Yogesh Putney, Advocate, puts in appearance and has supplied a copy of the judgment of a co-ordinate Bench of this Court, in New India Assurance Company Ltd. vs. Rajbala and others [2018 (3) TMI 1972 - PUNJAB AND HARYANA HIGH COURT] wherein held in a case pertaining to interest on the compensation awarded by the Motor Accident Claims Tribunal, no tax is payable on the interest up to Rs. 50,000/- and beyond Rs. 50,000/- the tax is to be deducted at source on the aggregate of the amount of such income paid during the financial year.
In view of the above, let notice of motion be also issued now to respondent no. 1, i.e. the claimant before the Motor Accidents Claims Tribunal, returnable on 06.9.2019.
In the meanwhile, operation of the impugned order to the extent that it directs the petitioner company to deposit the tax deducted at source shall remain stayed, till the next date of hearing.
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2019 (2) TMI 2041
Capital gain - Scope and legislative intent of Section 2(47)(ii), (v) and (vi) - JDA entered - essential ingredients for applicability of Section 53A of 1882 Act - Meaning to be assigned to the term “possession” - taxable capital gains arises from the transaction entered by the assessee - as decided by HC no possession had been given by the transferor to the transferee of the entire land in part performance of JDA so as to fall within the domain of Section 53A of 1882 Act - The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee - In the absence of registration of JDA having been executed after 24.09.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2(47)(v) of the Act does not apply.
HELD THAT:- SLP dismissed.
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2019 (2) TMI 2040
Clandestine removal - shortage/excess in the Annual Shortage and Surplus Report - HELD THAT:- The Tribunal has relied upon in the case of M/S. SAIL VERSUS COMMR. OF CENTRAL EXCISE, BOLPUR [2018 (3) TMI 1684 - CESTAT KOLKATA] where it was held that The issue decided in appellant own case ROURKELA STEEL PLANT [SAIL] VERSUS COMMISSIONER OF C. EX., BHUBANESWAR [2000 (7) TMI 726 - CEGAT, KOLKATA], where it was held that There is nothing on record to show that the appellants have been indulging into excess clearances without payment of duty. The appellants have satisfactorily explained the difference between the figures as reflected in annual financial account and those entered in RG-I for each and every item.
It is true that the circumstances of the case relied on by the Tribunal were similar to those at hand but what was the stock notionally determined and actually determined in the case at hand, how it was “adjusted” and “not being reflected in the Central Excise records” were not explained at all in the impugned judgment and order of the Tribunal. So it might be said that the broad dispute in these two cases was similar. But that the facts were identical had to be established before applying the decision of the earlier case to the one at hand.
Appeal disposed off.
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2019 (2) TMI 2039
Contempt of Court - violation with the order of Court regarding refund of amount within eight weeks from 28.11.2018 - HELD THAT:- Though eight weeks had expired on 24.01.2019, Mr. Vikramjit Banerji, learned ASG appears and asks for more time. It is made clear that this refund will have to be made within a period of two weeks from today. No further extension shall be granted.
List after three weeks.
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2019 (2) TMI 2038
The Supreme Court of India dismissed I.A. No. 13908 of 2019. The Court directed the National Company Law Tribunal, Mumbai, to decide the matter relating to a set off of Rs. 112 crores within three weeks.
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2019 (2) TMI 2037
Seeking lifting of attachment - recovery of dues - priority over such dues - whether the charge created by the Customs Department would prevail over the charge created by the Bank in discharge of which the property in question was auctioned and purchased for valuable consideration by the petitioner? - Section 26E to the SARFAESI Act - HELD THAT:- The question of priority of charge was considered by the Full Bench of this Court in the case of UTI Bank Limited vs. Deputy Commissioner Central Excise [2006 (12) TMI 2 - MADRAS HIGH COURT] setting out the scheme of priority in respect of collection of dues, where it was held that In the absence of such specific provision in the Central Excise Act as well as in Customs Act, we hold that the claim of secured creditor will prevail over Crown's debts.
The Section is unambiguous and provides that a charge created over a property to a secured creditor, being a financial institution, would prevail over all other charges created over the asset in question and is absolute in its obligation - In the present case, the charge created by the Bank is prior in time to the demand raised by the customs authorities. Moreover, the customs authorities have not even registered an encumbrance or created a charge but only written a letter to the Registrar not to entertain any transfer of the property in question. This cannot, in any way stand in the way of the Bank, as secured creditor, taking recourse under SARFAESI.
The respondent is directed to lift the attachment over the property in question within a period of two (2) weeks from date of receipt of a copy of this order - Petition allowed.
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2019 (2) TMI 2036
Prosecution and conviction for the offences punishable Under Sections 279 and 304-A of the Indian Penal Code, 1860 - whether the two punishments awarded to the Appellant Under Section 279 and Section 304-A Indian Penal Code would run concurrently or consecutively? - HELD THAT:- It was necessary for the Magistrate to have ensured compliance of Section 31 of the Code when she convicted and sentenced the Appellant for two offences in a trial and inflicted two punishments for each offence, namely, Section 279 and Section 304-A Indian Penal Code - In such a situation, it was necessary for the Magistrate to have specified in the order by taking recourse to Section 31 of the Code as to whether the punishment of sentence of imprisonment so awarded by her for each offence would run concurrently or consecutively.
Indeed, it being a legal requirement contemplated Under Section 31 of the Code, the Magistrate erred in not ensuring its compliance while inflicting the two punishments to the Appellant.
The Appellant was convicted and accordingly punished with a sentence to undergo two years rigorous imprisonment with a fine amount of Rs. 1000/- and in default of payment of fine amount to further undergo one month simple imprisonment Under Section 304-A and 6 months rigorous imprisonment with a fine amount of Rs. 1000/- and in default of payment of fine amount to further undergo 15 days simple imprisonment Under Section 279 Indian Penal Code - having regard to the facts and circumstances of the case and keeping in view the nature of controversy involved in the case, both the sentences awarded by the Magistrate to the Appellant would run "concurrently".
So far as the merits of the case is concerned, when three Courts have, on appreciation of evidence, found that the prosecution was able to make out a case against the Appellant, there are no good ground to interfere in such finding.
The appeal thus succeeds and is allowed in part.
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2019 (2) TMI 2035
Validity of re-opening of assessment under section 147 - AO received specific information from the DGIT (Inv.), Mumbai that purchases claimed to have been made from three parties are not genuine - HELD THAT:- AO had tangible material before him to form the belief that income chargeable to tax has escaped assessment. It is also seen from record that challenging the re–opening of assessment assessee had raised objections before the Assessing Officer. However, before completion of the assessment, the Assessing Officer has disposed off the objections of the assessee through a separate well reasoned order.
As regards the contention of the assessee that there being no failure on the part of the assessee to disclose fully and truly all material facts relating to the assessment the re–opening of assessment after four years is invalid, we must observe, non–furnishing of accurate / correct details relating to purchases made tantamount to failure on the part of the assessee to disclose fully and correctly all material facts relating to his assessment. That being the case, the re–opening of assessment cannot be held to be invalid
The contention of the assessee that in spite of having information before him, the Assessing Officer did not make any addition on account of bogus purchase in the assessment completed under section 153C of the Act is irrelevant considering the fact that the intent and purpose of section 153C of the Act is different from section 148 of the Act. In view of the aforesaid, I hold that the Assessing Officer has validly re–opened the assessment under section 147 of the Act. Accordingly, ground no.1 is dismissed.
Estimation of Income - Bogus purchases - As respectfully following the decision of the Co–ordinate Bench in assessee’s own case we direct the Assessing Officer to restrict the addition to 2% of the non–genuine purchases. This ground is partly allowed.
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2019 (2) TMI 2034
Deduction in respect of interest paid u/s 57(iii) - Interest expenditure on borrowings utilized for advancing loan to the partners not allowable u/s. 57(iii) - CIT-A assessing the interest received on loans as income from other sources thereby upholding the order of the Assessing Officer treating the same as part of project cost - HELD THAT:- As we observe that in this case there exists nexus between borrowings of money from the partner M/S Godrej Properties Ltd and lending out of that to two partners.
Therefore, in our opinion, while assessing interest income received on loans from two partners namely M/s. Repton landmarks LLP and Mr. Ramesh P. Bhatia as income from other sources, deduction has to be allowed in respect of interest payment on loan to M/s. Godrej Properties Ltd. to equal extent. In our opinion decision cited by learned CIT(A) in the case of Dr. V.P. Gopinathan [2001 (2) TMI 10 - SUPREME COURT] is clearly distinguishable on fact and not applicable in the present case. In our view, the assessee has proved direct nexus between borrowings and lending. Therefore we are not in agreement with the conclusion of learned CIT(A). Accordingly we set aside the order of learned CIT(A) and direct the Assessing Officer to allow deduction in respect of interest paid u/s 57(iii) of the Act while assessing interest income as income from other sources. Assessee appeal allowed.
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2019 (2) TMI 2033
Effect of subsequent vacation of injunction - how an injunction in personam restraining a person from proceeding with a foreign arbitral reference would impact the application for implementation of the foreign award when such award has been rendered at a time that the injunction was in subsistence, but the injunction has subsequently been vacated?
HELD THAT:- While it is impossible to imagine every possible ground that can be urged by a party to arrest the initiation or the continuation of a foreign arbitral reference even by inviting an injunction in personam, there can be certain broad categories in which such grounds may be placed. There could be classes of cases challenging the jurisdiction of the foreign arbitral tribunal on the ground of the very existence of the arbitration agreement or the efficacy of the arbitration agreement or the survival of the arbitration agreement or the jurisdiction of the arbitral tribunal. Likewise, an anti-arbitration injunction may be sought on the ground of the incapacity of the party seeking the injunction or grounds of overwhelming inconvenience to such party.
Another class of reasons invoked to seek an anti-arbitration injunction could be the egregious fraud committed by the party seeking to initiate or pursue the arbitral reference or of the arbitral reference being patently vexatious or unbearably oppressive. In every case, it is the duty of the court to exercise extreme caution and circumspection before issuing an anti-suit or anti-arbitration injunction and, as high authorities instruct, the injunction should be in personam and issued against a party amenable to the jurisdiction of the court issuing the injunction and not issued against a foreign court or a foreign arbitral tribunal.
Just as the legal trinity of justice, equity and good conscience casts a duty on a court to see that a party before it is not unfairly prejudiced, the principles of comity, the respect for the sovereignty of a friendly nation and the need for self-restraint should guide a court to issue an injunction of such nature only in the most extreme and gross situations and not for the mere asking. A court must be alive to the fact that even an injunction in personam in such a situation interferes with the functioning of a sovereign or a private forum which may not be subject to the writ of that court.
When an anti-suit or anti-arbitration injunction is issued by way of an ad interim or interim order without the relevant application being decided finally, its efficacy would never be established till the order has reached finality. And, if foreign proceedings (whether before a court or in course of an arbitration) are continued during the subsistence of an anti-suit or anti-arbitration injunction, the legality of the outcome of such foreign proceedings will depend on the final outcome of the application on which the injunction was issued, whether at the same level or in appeal or revision or the like. There is good reason for such an exception to be made - when a foreign decree or a foreign arbitral award is sought to be enforced and the only or primary ground to resist the same is that the decree or award was obtained by a party in derogation of an order of an injunction in personam against such party being in place by a court of the country where the enforcement is sought, the court in seisin of the petition for enforcement will take upon the adjudication of such ground if the injunction has attained finality.
Since the respondent's injunction restraining the appellant from proceeding the foreign arbitral reference has been vacated and the appellant's application for vacating such injunction has been allowed, such order, which has now attained finality since no appeal against the same has been preferred, will date back to the time of the institution of the respondent's application for injunction and the legal implication would be that the order of January 14, 2016 was never passed - Since none of the other grounds as sought to be canvassed by the respondent in course of the present appeal appear to have been taken before the court of the first instance and since such grounds, even if taken, had to be disregarded since the respondent did not challenge the arbitral award in the appropriate jurisdiction, the order impugned dated August 22, 2017 is set aside and the decks are cleared for the enforcement of the arbitral award dated January 21, 2016 by the appellant in accordance with law.
Appeal allowed.
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2019 (2) TMI 2032
CENVAT Credit - capital goods which have been used exclusively for manufacture of exempted goods when Rule 6(4) of Cenvat Credit Rules, 2004 - capital goods which are used exclusively for manufacture of exempted goods, in terms of provisions of Rule 6(6)(v) of Cenvat Credit Rules when the assessee has availed the benefit of exemption Notification No. 30/2004-C.E., dated 9-7-2004 as well as higher drawback available on such exported goods - capital goods which were used exclusively for manufacture of exempted goods which are exported claiming higher drawback under category ‘A’ as it will tantamount to allowing Cenvat credit on those capital goods which is not permissible in terms of Rule 6(4) of Cenvat Credit Rules, 2004.
The substantial questions of law as mentioned arise for consideration of this Court in the present appeal.
HELD THAT:- Issue Notice.
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2019 (2) TMI 2031
Seeking permission for presence of counsel at the time of interrogation - HELD THAT:- At this stage, the learned counsel for the DRI denies upon instructions, that the petitioner’s employees were subjected to any oppressive or coercive measures during interrogation. He submits that the petitioner had not been cooperating in the manner the Division Bench ordered on 25.01.2019, although he has joined investigations on 16.01.2019; that he did not appear on 28.01.2019 and 04.02.2019. However, it is submitted that the case was listed on 01.02.2019 and was adjourned for today.
The petitioner shall appear before the I.O. tomorrow at 12 o" clock and on all such dates when he is so required by the I.O. He shall have the benefit of the presence of a counsel who may watch the proceedings from a distance but beyond the audible range. It is expected that questioning will be carried out during office hours.
Petition disposed off.
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