TMI Blog2015 (9) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the assessee has taken up the matter on appeal to the Supreme Court on their litigation with the Department of Central Excise, would not make the payment a non payment. The heading, under which, the assessee has incurred expenditure is only a duty payment. Therefore, the Tribunal was right in holding that the assessee satisfied both the statutory provisions of Sections 37 and 43B. What the Assessing Officer has recorded is that no order or demand of excise duty served upon the assessee was produced. But, the Assessing Officer has recorded the fact that even in the order of the High Court, it was mentioned that the goods moved out of the factory after payment. The point that was raised by the Assessing Officer was that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143(1) and the case was selected for scrutiny. A notice under Section 143(2) was issued. In the course of scrutiny, it was found that the assessee claimed a deduction of ₹ 3,30,39,169/- as excise duty paid. The claim was made under 43B on payment basis. But unfortunately, the said payment had been made pursuant to a conditional order passed by the High Court in a litigation between the assessee and the Department of Central Excise. In other words, the liability of the assessee to pay excise duty had not crystallized or at least attained finality. Therefore, the assessee did not show this amount in the profit and loss account, but showed it under the heading of loans and advances in the fond hope of getting a refund after succee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, the assessee has incurred expenditure is only a duty payment. Therefore, the Tribunal was right in holding that the assessee satisfied both the statutory provisions of Sections 37 and 43B. 8. Mr.J.Narayanasamy, learned Standing Counsel pointed out that even the third ground raised by the Department to the effect that the assessee failed to produce any order of excise duty or demand notice of any other statutory authorities for proving the liability was not considered by the Tribunal. 9. But, we do not think that the Department can ask for anything more than the factum of payment. The actual payment of the amount was not disputed even in the order of the Assessing Officer. What the Assessing Officer has recorded is that no orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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