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Lombardini India Pvt. Ltd. Versus Commissioner of Central Excise

CENVAT credit - input services - Since the issue regarding the availability of Cenvat Credit on the said service was not taken up before the original adjudicating authority, the Revenue has contended that it is not open to take up the said issue before the appellate forums - Held that: - a SCN was issued on the ground that the said disputed services are not input service. The appellants have not addressed the said issue before the original adjudicating authority. However, it does not preclude th .....

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RDER Per : Raju 1. This appeal has been filed by M/s.Lombardini India Pvt. Ltd. against denial of Cenvat Credit on certain services. 2. Ld. Counsel for the appellant argued that they had availed Cenvat Credit on certain services and the said credit as denied to them by the original adjudicating authority. The appellant had reversed the credit. Their defence before the original adjudicating authority were mainly on demand on interest and penalty. She argued that on merits also the credit is admis .....

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proof of the said claim. 3. Ld. AR relies on the impugned order. 4. I have gone through the rival submissions. I find that notice was issued to the denial of Cenvat Credit on certain services, which were claimed to be input service. From the reply filed before the original adjudicating authority, it is seen that in there was no ground in respect of admissibility of the said credit. The grounds of challenge were limited to interest of the said Cenvat Credit and penalty imposed under the Cenvat C .....

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before it. In para 5, 6 & 7, the Hon ble Apex Court has observed as follows: 5. Under Section 254 of the Income-tax Act, the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in .....

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ecide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 6. In the case of Jute Corporation of India Ltd. v. C.I.T. - 1991 (51) E.L.T. 176 (S.C.) = (1991) 187 ITR 688, this Court, while dealing with the po .....

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ate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. .....

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Delhi), C.I.T. v. Karamchand Premchand P. Ltd. - (1969) 74 ITR 254 (Guj.) and C.I.T. v. Cellulose Products of India Ltd. - (1985) 151 ITR 499 (Guj.) (FB)]. Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to conside .....

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