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2011 (1) TMI 1327
Search - Shortage of finished goods - the decision in the case of SOMANI IRON & STEELS LTD. Versus CESTAT [2010 (9) TMI 807 - ALLAHABAD HIGH COURT] contested where it was held that private records, from which the suppressed production was found from the possession of the employees of the appellant. The private records were found in the factory of the appellant. The burden was upon it to prove that they were wrong and did not belong to them, No substantial question of law arises from the order of the Tribunal - Held that: - this is not a fit case for exercise of our jurisdiction under Article 136 of the Constitution of India - SLP dismissed.
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2011 (1) TMI 1326
Issues involved: Cross appeals regarding inclusion of Cenvat element in closing stock, scrap sale in total turnover for deduction u/s.80HHC, exclusion of interest receipt from profit for deduction u/s.80HHC, computation of arm's length price for exports, exclusion of excise duty and sales-tax from total turnover for deduction u/s.80HHC, direction for not deducting certain receipts, and reduction of arm's length price.
Issue 1: Inclusion of Cenvat element in closing stock
The assessee appealed against the inclusion of Cenvat element in the closing stock. The Tribunal, based on previous orders in the assessee's favor, overturned the impugned order, allowing this ground.
Issue 2: Scrap sale in total turnover for deduction u/s.80HHC
The appeal contested the inclusion of scrap sale in the total turnover for deduction u/s.80HHC. The Tribunal referred to a recent order and upheld the impugned order based on the Supreme Court judgment, dismissing this ground.
Issue 3: Exclusion of interest receipt from profit for deduction u/s.80HHC
The contention was about excluding interest receipt from profit for deduction u/s.80HHC. Following a previous decision, the Tribunal set aside the impugned order on this issue for fresh consideration by the AO.
Issue 4: Computation of arm's length price for exports
Challenges were raised regarding the computation of arm's length price for exports to associated enterprises. The Tribunal, considering past decisions against the assessee, dismissed these grounds of appeal.
Issue 5: Exclusion of excise duty and sales-tax from total turnover for deduction u/s.80HHC
The Revenue appealed against the exclusion of excise duty and sales-tax from total turnover for deduction u/s.80HHC. Upholding the Supreme Court judgment, the Tribunal upheld the impugned order on this matter.
Issue 6: Direction for not deducting certain receipts
The appeal contested the direction to not deduct certain receipts. Referring to a previous decision in the assessee's favor, the Tribunal upheld the impugned order on this issue.
Issue 7: Reduction of arm's length price
The challenge was against the reduction of arm's length price. Acknowledging a previous decision against the assessee, the Tribunal set aside the impugned order on this issue, allowing this ground.
In conclusion, both appeals were partly allowed by the Tribunal, with various grounds being upheld or set aside based on legal precedents and previous decisions.
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2011 (1) TMI 1325
Whether terms and conditions mentioned in the Collectors order are followed by the Applicant land owner or not?
Whether the Applicant has committed any violation?
Whether the land owner has kept water culverts open or not? If the committee finds that the water is stopped which may ultimately cause destroying of mangroves, the committee i.e. Area Officers should make the owner to open the culverts immediately. The committee should make detailed enquiry and the consolidated report should be sent to the District Collector within 15 days?
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2011 (1) TMI 1324
Whether Appellants were entitled to the benefit of doubt for in the opinion of the High Court the charge framed against the appellant had been satisfactorily proved?
Whether the appellants could be given the benefit of doubt having regard to the nature of the evidence adduced by the prosecution against them?
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2011 (1) TMI 1323
Issues Involved: 1. Delay in filing special leave petition. 2. Dismissal of special leave petitions based on previous judgments.
Issue 1: Delay in filing special leave petition
The Supreme Court noted an inordinate delay of 242 days in filing the special leave petition. The appellant sought condonation of the delay but failed to provide a satisfactory explanation for the delay. The Court observed that in a similar case involving Hindustan Zinc Ltd., the special leave petition had been dismissed. Additionally, another case related to the Mumbai High Court's decision had its special leave petition dismissed as well. Considering these precedents and the lack of a valid explanation for the delay, the Court dismissed the special leave petition both on grounds of delay and on merits.
Issue 2: Dismissal of special leave petitions based on previous judgments
For special leave petitions numbered 34208/2010, 34209/2010, 328/2011, and 332/2011, the delay was condoned. However, following a previous judgment in Union of India & Ors. vs. M/s Indian National Ship Owners, dated 14th December, 2009, the Supreme Court dismissed these special leave petitions. The Court's decision was based on the precedent set by the earlier judgment, leading to the dismissal of the petitions.
This judgment highlights the importance of adhering to timelines in filing special leave petitions and the significance of providing valid justifications for any delays. It also underscores the impact of previous judgments on the outcomes of similar cases, emphasizing the need for consistency and compliance with legal precedents in the judicial process.
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2011 (1) TMI 1322
Whether the provisions of the BDA Act, specifically or by implication, require exclusion and/or inclusion of certain provisions like Sections 6 and 11A of the Land Acquisition Act?
Whether the provisions of Section 6 of the Land Acquisition Act will apply to the acquisition under the BDA Act and if the final declaration under Section 19(1) is not issued within one year of the publication of the notification under Section 17(1) of the BDA Act?
Whether it is a case of legislation by reference or legislation by incorporation?
Whether the BDA Act is a complete code in itself?
Whether the BDA Act and Land Acquisition Act can co-exist and operate without conflict?
Whether there being no contravention between the two laws, they can be harmoniously applied and Section 11A of the Land
Whether Acquisition Act can be read into the BDA Act without disturbing its scheme?
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2011 (1) TMI 1321
Issues: 1. Whether the presence of Dhapubai in the adoption ceremonies amounted to her consent under Section 7 of the Hindu Adoptions and Maintenance Act, 1956. 2. The validity of the adoption of Ghisalal by Gopalji. 3. The validity of the Gift Deeds dated 22.10.1966 and 29.11.1944, the Will dated 27.10.1975, and the Sale Deed dated 19.1.1973. 4. The respective shares of the parties in the suit properties.
Detailed Analysis:
Issue 1: Consent of Dhapubai under Section 7 of the Hindu Adoptions and Maintenance Act, 1956 The primary question was whether Dhapubai's presence at the adoption ceremonies could be interpreted as her consent as required by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956. The trial court, lower appellate court, and the High Court presumed her consent based on her presence. However, the Supreme Court held that mere presence does not equate to consent. The Court emphasized that the consent of the wife should be explicit, either in writing or through active participation in the adoption ceremonies, which was not evidenced in this case. The Court stated, "The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent."
Issue 2: Validity of the Adoption of Ghisalal by Gopalji The trial court and lower appellate court found the adoption valid, presuming Dhapubai's consent from her presence. The High Court upheld this finding. However, the Supreme Court found this reasoning flawed, noting that Dhapubai's role was merely that of a spectator and not an active participant. The Court observed, "Neither Ghisalal nor any of the witnesses examined by him stated that before taking Ghisalal in adoption, Gopalji had consulted Dhapubai or taken her in confidence." The Supreme Court concluded that the adoption was invalid due to the lack of Dhapubai's explicit consent.
Issue 3: Validity of Gift Deeds, Will, and Sale Deed The trial court invalidated the Gift Deeds dated 22.10.1966 and 29.11.1944, the Will dated 27.10.1975, and the Sale Deed dated 19.1.1973. The lower appellate court upheld the invalidation of the 1966 Gift Deeds but reversed the findings on the 1944 Gift Deed and the 1975 Will. The High Court partially agreed with the lower appellate court. The Supreme Court, however, held that since the adoption was invalid, Ghisalal had no standing to challenge these documents. The Court stated, "As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable."
Issue 4: Respective Shares in the Suit Properties The High Court had directed that each party was entitled to half share in the agricultural lands and house property, barring the lands given under the 1944 Gift Deed. The Supreme Court set aside these directions, invalidating the adoption and thereby nullifying Ghisalal's claim to the properties. The Court concluded, "The judgments and decrees passed by the trial Court, the lower appellate Court and the High Court are set aside and the suit filed by Ghisalal is dismissed."
Conclusion: The Supreme Court allowed the appeals, set aside the judgments of the trial court, lower appellate court, and High Court, and dismissed Ghisalal's suit. The Court held that Dhapubai's mere presence at the adoption ceremonies did not amount to consent, rendering the adoption invalid. Consequently, Ghisalal had no standing to challenge the Gift Deeds, Will, and Sale Deed, and his claim to the properties was dismissed.
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2011 (1) TMI 1320
Exemption u/s 11 - corpus donation - voluntary contributions (whether corpus donations or general donations) received by a Charitable Trust is income as defined vide section 2(24)(iia) of the Act or not - corpus donations are exempt from tax u/s 11(1)(d) only if assessee is registered u/s 12A/12AA of the Act or not - receipt of money by the assessee in the status of AOP - applicability of provisions of Chapter IV.
HELD THAT:- The Tribunal, in the assessee’s own case for assessment year 2003- 04, held that the amount received by the assessee trust from its settler, towards infrastructure fund, was not taxable in the hands of the assessee, despite the fact that the assessee trust was not registered u/s 12A of the Act in that year.
The Hon’ble Delhi High Court, vide its order in BASANTI DEVI & SHRI CHAKHAN LAL GARG EDUCATION TRUST [2009 (9) TMI 978 - DELHI HIGH COURT] have dismissed the Department’s appeal against the aforesaid Tribunal order, by observing the CIT(A) as well as ITAT rightly concluded that the donations received towards corpus of the trust would be capital receipt and not revenue receipt chargeable to tax.
The Department contends that the aforesaid High Court order is under challenge before the Hon’ble Supreme Court by way of a SLP filed by the Department. This, however, is not premise enough to allow the Department’s appeal, particularly when the High Court order has not been shown to have been stayed. Decided in favour of assessee.
Respectfully following the High Court decision in the assessee’s own case for assessment year 2003-04, the grievance of the Department is rejected.
The appeal filed by the Department is dismissed.
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2011 (1) TMI 1319
Issues: Petition seeking re-credit of refund amount in Duty Entitlement Passbooks (DEPBs).
Analysis: The petitioner imported goods and paid Customs duty by way of debit in the DEPB Scrips. A refund claim for re-credit of the benefit was sanctioned in the petitioner's favor on 26-3-2009. However, the re-credit was not executed as the original scrips were not produced by the petitioner. The petitioner contended that it had deposited the original DEPB scripts and FMS scrips with the respondent before the order dated 26-3-2009, as per the prescribed procedure. The respondent claimed that the file was missing, leading to a request for duplicate DEPB scrips.
The court considered the submissions of both parties. The petitioner's counsel highlighted the letter from the Deputy Commissioner of Customs, Ludhiana, dated 9-11-2010, indicating that the original file was missing from the department's office. The respondent's counsel failed to counter this argument. Consequently, the court directed respondent No. 3 to provide necessary documents to the petitioner within three months to facilitate the re-credit process. The respondent was instructed to secure duplicate DEPBs and pay statutory interest for any delay in accordance with the law.
In conclusion, the petition was disposed of with the court's decision to grant relief to the petitioner by ordering respondent No. 3 to facilitate the re-credit process within the specified timeline, ensuring the petitioner receives the entitled benefit as per the order dated 26-3-2009.
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2011 (1) TMI 1318
Issues: Assessment of duty based on capacity of production, verification of mill parameters, validity of changes made by appellant in "d" factor, obligation to indicate changes post-scheme withdrawal.
Analysis: 1. Capacity of Production Assessment: The appellant, a manufacturer of non-alloy steel products, was subject to duty assessment based on the capacity of their production mill. The dispute arose when the officers alleged discrepancies in the declared mill and the "d" factor value claimed by the appellant, leading to a show cause notice for payment of differential duty.
2. Verification of Mill Parameters: The Commissioner's order was based on a verification conducted in December 2000, where it was found that the appellant had made changes to the mill parameters post-scheme withdrawal. The Commissioner held that the "d" factor should be 197 mm instead of the declared 158 mm, leading to an increased duty liability.
3. Validity of Changes in "d" Factor: The appellant argued that the changes in the "d" factor were made after the scheme's withdrawal in July 2000 and should be considered valid. The appellant contended that the late verification by the department did not account for the changes made and sought to set aside the Commissioner's order.
4. Obligation to Indicate Post-Scheme Changes: The Tribunal considered the obligation of the appellant to indicate changes made post-scheme withdrawal. The Tribunal noted the documentary evidence provided by the appellant regarding the changes in the mill parameters and held that the appellant was not obligated to disclose changes made after the scheme's withdrawal.
5. Decision: After analyzing the submissions and evidence, the Tribunal held that the Commissioner's decision to enhance the "d" factor value from 158 mm to 197 mm was not appropriate. The Tribunal set aside the Commissioner's order and allowed the appeal, providing consequential relief to the appellant as per the law.
In conclusion, the Tribunal's judgment focused on the timing of changes made by the appellant in the mill parameters, considering the scheme's withdrawal and the obligation to disclose post-scheme modifications. The Tribunal's decision highlighted the importance of considering the relevant timeline for changes in determining duty liability, ultimately ruling in favor of the appellant based on the presented documentary evidence and lack of obligation to disclose changes made after the scheme's withdrawal.
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2011 (1) TMI 1317
Issues involved: Appeal against rejection of refund claim and imposition of penalty for clearance to SEZ units without executing bond or submitting letter of undertaking.
Summary: The appellants, manufacturers of Metered Valves, Pump, and Ferrules Actuators, cleared goods to SEZ units under "NIL" rate of duty without executing bond or submitting letter of undertaking as required by Central Excise Rules. After paying the duty and filing a refund claim, the claim was rejected by the Asst. Commissioner, who imposed a penalty under Rule 25 of the Central Excise Rules. The first appellate authority also rejected the appeal, leading to the current appeal.
The appellant's counsel argued that the goods cleared to SEZ units should be considered as exports, and therefore duty should not be payable. They also highlighted the non-consideration of re-warehousing certificates by the lower authorities and cited relevant case laws and CBEC Circular No. 290/6/97-CX.
The Departmental Representative contended that the refund claim was incorrect as the duty had already been paid by the appellants, falling under the provisions of Section 11B of the Central Excise Act, 1944. The authorities had considered the appellants' debiting of the duty amount as payment, not a deposit.
The Tribunal found that the goods cleared to SEZ units were not liable for duty, and any violation of rules could result in penalties, not duty payment. As the re-warehousing certificates were genuine and no dispute existed regarding the goods reaching SEZ units, the amount debited by the appellants could not be considered as duty payable. Therefore, the refund claim fell under the category specified in a relevant Board circular. The impugned order was set aside, and the appeal was allowed with consequential relief, if any.
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2011 (1) TMI 1316
Issues involved: The issue involves the denial of turnover discount by the Revenue due to the appellant not requesting provisional assessment u/s the Customs Act.
Summary:
Issue 1: Denial of turnover discount The appellant cleared goods from factory to depot with a discount structure of 30% at the time of sale from depot and 7% at year end. The Revenue disputed the turnover discount due to lack of request for provisional assessment. The amount in dispute was Rs. 18,12,381 with an equal penalty imposed. The Tribunal noted that the eligibility for turnover discount deduction from list price is well settled by the Supreme Court. The nature of turnover discount implies that the quantum is known only towards the year end. The Supreme Court has affirmed that turnover discount is an eligible deduction for arriving at assessable value. The failure to follow provisional assessment procedure does not justify denying a benefit already settled by law. The Tribunal held that there was no merit in the demands confirmed by the Revenue, and the appeal was disposed of without the requirement of depositing duty and penalty.
Conclusion: The Tribunal decided in favor of the appellant, holding that the denial of turnover discount by the Revenue was not justified, and the appeal was disposed of without the need for duty and penalty deposit.
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2011 (1) TMI 1315
Issues: 1. Waiver of pre-deposit and stay of recovery of irregularly availed Cenvat credit. 2. Entitlement to Cenvat credit for processes carried out on received goods. 3. Interpretation of Note 6 to Section XVI of the Central Excise Tariff Act, 1985. 4. Prima facie view on the process of manufacture. 5. Decision on waiver of dues and stay application.
Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery of an amount of Rs. 2,41,04,446/- for irregularly availed Cenvat credit during 1-4-2004 to 31-3-2006. The Commissioner disallowed the credit as the processes carried out were deemed insufficient for manufacturing. The demand amounted to Rs. 2,40,75,746/- with an additional Rs. 28,700/- for inadmissible credit.
2. The Tribunal examined the processes undertaken by the appellant on received goods such as fork lift truck parts, automobile parts, and I.C. engine parts. The Commissioner contended that no new product emerged from the processes, considering them as minor surface cleaning activities. However, the appellant argued that essential operations like drilling, burring, grinding, etc., were crucial for marketable finished goods, supported by detailed operations and customer communications.
3. The Tribunal referred to Note 6 of Section XVI of the Tariff Act, which states that converting incomplete articles into finished ones amounts to manufacture. Considering the essential activities performed by the appellant to make the products marketable, the Tribunal opined that these constituted manufacturing processes, contrary to the adjudicating authority's view.
4. Relying on precedents like Western Refrigeration Pvt. Ltd. and Indo Asian Fuse Gear Ltd., where Note 6 of Section XVI was deemed applicable for similar activities, the Tribunal held that the appellant was entitled to the Cenvat credit denied in the impugned order. Consequently, the Tribunal ordered a waiver of pre-deposit and penalty, staying their recovery pending the appeal decision.
5. While the Tribunal did not find a prima facie case for the Rs. 28,700/- Cenvat credit, it noted an appropriation of Rs. 10,33,379/- in the impugned order. Ultimately, the Tribunal granted a complete waiver of the adjudged dues against the appellant and approved the stay application, delivering the judgment on 25-1-2011.
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2011 (1) TMI 1314
Issues: - Granting of refund of excess duty paid after the statutory period - Applicability of limitation under Section 27 of the Customs Act to refund claims - Jurisdiction of revenue authorities to enhance time period for refund claims - Entertaining refund claims contrary to unchallenged assessment orders
Analysis: 1. The Commissioner (Appeals) had granted a refund of excess duty paid by the respondent for life-saving antibiotic bulk drugs, even though the refund claim was filed after the statutory period of six months as per Section 27 of the Customs Act, 1962. The Appellate Authority held that when duty is collected without legal authority, the limitation period does not apply, and the excess duty should be refunded to the assessee.
2. The Revenue challenged the Commissioner's order on two grounds. Firstly, they argued that the limitation prescribed in Section 27 of the Customs Act is applicable to refund claims, and the authorities cannot extend this time period. Citing a judgment from the Hon'ble Calcutta High Court, the Revenue contended that the time limit cannot be enhanced. Secondly, they argued that a refund claim contrary to an unchallenged assessment order, as per the decision of the Hon'ble Supreme Court in a specific case, cannot be entertained.
3. The Tribunal agreed with the Revenue's contentions. They held that the Revenue authorities are bound by the law specified in Section 27 of the Customs Act and cannot exceed their jurisdiction to grant refunds, even if the claim is filed after the limitation period. The Tribunal also emphasized that filing a refund claim without challenging the assessment order is impermissible, following the precedent set by the Hon'ble Supreme Court in a specific case.
4. Consequently, the Tribunal set aside the Commissioner (Appeals) order and allowed the appeal filed by the Department. The decision was made based on the principles outlined in the Customs Act and the legal precedents established by the higher courts, ensuring adherence to statutory provisions and judicial interpretations.
5. In conclusion, the judgment highlighted the importance of adhering to statutory timelines for refund claims and the necessity of challenging assessment orders before seeking refunds. The decision underscored the significance of legal principles and precedents in determining the validity of refund claims and the jurisdiction of revenue authorities in granting such refunds.
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2011 (1) TMI 1313
Issues Involved: Violation of Rule 43A of the Drugs and Cosmetics Rules, 1945 by importing goods through Tuticorin Port, Customs Act provisions, Confiscation under Section 111(d) of the Customs Act, 1962, Leniency in imposing fines and penalties.
Analysis:
Violation of Rule 43A of the Drugs and Cosmetics Rules, 1945: The appellants imported veterinary drugs through Tuticorin Port, believing it was allowed under Customs Notification No. 62/94 (N.T.). However, Rule 43A of the Drugs and Cosmetics Rules did not list Tuticorin Port as a designated port for drug imports. The violation was unintentional, and the goods were later certified as not spurious. The Tribunal emphasized that the Customs Act provisions and the Drugs and Cosmetics Rules serve different purposes, and compliance with both is necessary. The Tribunal found the confiscation of goods and imposition of fines justified due to the violation.
Customs Act Provisions and Confiscation under Section 111(d): The Customs Notification allowing import through a port is general, but specific laws like the Drugs and Cosmetics Rules must also be followed. The Tribunal clarified that the violation of Rule 43A of the Drugs and Cosmetics Rules led to confiscation under Section 111(d) of the Customs Act, not Section 111(a) as in a previous case. The judgment highlighted the importance of adhering to all relevant laws and regulations governing imports, even if a general Customs notification exists.
Leniency in Imposing Fines and Penalties: While the Tribunal upheld the confiscation and imposition of penalties for the violation, it acknowledged the appellants' unintentional breach and subsequent corrective actions. The authorities had already shown leniency by imposing a nominal penalty. The Tribunal decided to reduce the redemption fine imposed on the appellants from &8377; 5 lakhs to &8377; 2 lakhs per case. This reduction was granted as a gesture of leniency, with a warning against future violations.
In conclusion, the Tribunal partially allowed the appeals by reducing the redemption fines but upheld the confiscation and penalties imposed for the violation of Rule 43A of the Drugs and Cosmetics Rules. The judgment underscores the importance of compliance with specific regulations alongside general customs provisions and the consideration of leniency based on the circumstances of each case.
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2011 (1) TMI 1312
Issues: Import of firearms and ammunition under EXIM policy relaxation, alleged violation of licensing restrictions, demand of duty, penalty, and redemption fine.
Analysis: 1. Import under EXIM policy relaxation: The National Rifle Association of India (NRAI) imported firearms and ammunition between 1995 to 2003 based on a certificate from the Sports Authority of India, exempted from licensing requirements under Notification No. 146/94-Cus. The imports were for distribution to State Level Federations.
2. Alleged violation and demand of duty: A show cause notice claimed that the imported arms and ammunition were sold to State Rifle Associations against licensing restrictions and exemption conditions. The Commissioner demanded duty of &8377; 4,24,12,787/-, interest, penalty, and imposed a redemption fine, alleging violation of the notification and licensing conditions.
3. Appellant's defense: NRAI, as a national coordinating agency, procured the items for distribution to State Federations with Sports Ministry's certificate. They argued that the items were used for intended purposes through State Federations, with no misuse alleged. They contested the duty demand beyond five years and the penalty imposed.
4. Revenue's stance: The Revenue contended that the sale of arms and ammunition by NRAI breached the notification and licensing conditions, seeking pre-deposit of the amounts as per the Commissioner's order.
5. Tribunal's decision: After reviewing submissions and records, the Tribunal analyzed the notification's conditions and historical amendments. It noted that NRAI's imports were recommended by the Sports Ministry for national and international competitions, finding no evidence of misuse. Considering NRAI's societal role and financial status, the Tribunal waived pre-deposit and stayed recovery pending appeal.
In conclusion, the Tribunal ruled in favor of the National Rifle Association of India, granting a stay on the recovery of dues and penalties until the appeal's final disposal, based on the lack of evidence supporting the alleged violation of exemption conditions and the organization's societal contributions and financial constraints.
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2011 (1) TMI 1311
Issues: Eligibility of credit based on lost duplicate invoice and eligibility of credit taken after six months from the date of relevant documents.
Eligibility of credit based on lost duplicate invoice: The dispute focused on the appellant's claim for credit of &8377; 96,048 based on an original invoice due to the loss of the duplicate copy. The appellant informed the Assistant Commissioner promptly about the lost duplicate invoice and utilized the goods for the intended purpose. The advocate argued that denial of credit without evidence of non-receipt of goods or duty payment was unjustified, citing relevant tribunal cases. The department contended that credit could only be taken based on original invoices if the loss of the duplicate was proven to the Assistant Commissioner's satisfaction. However, the Tribunal found that the appellant's explanation, notification to the Assistant Commissioner, and compliance with Rule 57G(6) warranted credit approval, as no evidence suggested non-receipt or non-duty payment.
Eligibility of credit taken after six months from the date of relevant documents: The second issue concerned the denial of credit amounting to &8377; 4,46,654 taken after six months from the date of relevant documents, despite the goods being received and entered in the Cenvat account within the specified time. The advocate argued that the delay in taking credit was a clerical error and not deliberate, citing a tribunal case to support the claim. The department relied on Rule 57G(5) to oppose the delayed credit. The Tribunal noted that the goods were received and accounted for within the time limit, with the delay attributed to a clerical mistake. Relying on a precedent where credit was allowed for goods received within the timeframe, the Tribunal deemed the denial of credit unjustified. Consequently, the Commissioner (Appeals) order was set aside, and the appeal was allowed with consequential relief as per law.
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2011 (1) TMI 1310
Issues: 1. Conversion of DEPB shipping bills into free shipping bills. 2. Rejection of the conversion request by the Commissioner. 3. Examination of goods under DEPB scheme. 4. Applicability of DEPB rates for filled cushions.
Analysis: 1. The appellant initially filed DEPB shipping bills for the export of made-ups. However, upon the officer's intimation that the item was not covered under the specified DEPB heading, the appellant converted these bills into free shipping bills with permission granted by the proper officer.
2. The appellant informed the Commissioner that the shipments were being converted under protest, seeking clarification from the DGFT. The Commissioner rejected the request for conversion based on a Board Circular, noting that the appellant's uncertainty was evident from their communication with the DGFT post-shipment. The Commissioner also highlighted that the goods were deemed ineligible for the DEPB scheme during examination, leading to the conversion to duty-free shipping bills.
3. The Tribunal disagreed with the Commissioner's reasoning, citing correspondence indicating that the goods were not covered under the DEPB scheme as noted by examining officers. The conversion to free shipping bills was not at the exporter's request but at the Revenue's behest. Referring to legal precedent, the Tribunal allowed the conversion of free shipping bills back to DEPB shipping bills.
4. The Tribunal directed the lower authorities to examine the appellant's DEPB claim in light of the DGFT clarification, emphasizing that the conversion was warranted based on the circumstances and the misclassification of goods under the DEPB scheme. The judgment concluded by allowing the conversion of free shipping bills to DEPB shipping bills, ensuring a proper assessment of the DEPB claim moving forward.
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2011 (1) TMI 1309
Whether there are mitigating circumstances in the case in favour of the respondents to show that in spite of the fact that they had committed the offence they did not intend to kill the deceased. Thus, they are liable to be convicted under Section 304 Part-II IPC read with Section 34 IPC?
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2011 (1) TMI 1308
Issues involved: The judgment addresses the following issues: 1. Whether the Tribunal correctly excluded a sum of Rs. 15 lakhs shown as provision while computing book profit under Section 115J of the Income Tax Act, 1961? 2. Whether the Tribunal correctly allowed deduction under Section 80I without considering the deduction under Section 80HH of the Act? 3. Whether the Tribunal correctly allowed 1/7th of the premium amount payable on redemption of debentures after seven years?
Issue 1: The ITAT found that a sum of Rs. 13,97,672 was paid as an incentive to employees after the relevant financial year, which had already been allowed as a deduction by the AO under the normal provisions of the Act. The ITAT concluded that there was no justification for the AO to adjust this amount while computing the book profit under Section 115J of the Act. The court agreed with this view, stating that it was not an unascertained liability and therefore should not be added back to the net profits. The decision was made in favor of the assessee based on this reasoning.
Issue 2: The court noted that the question of allowing deduction under Section 80I without considering the deduction under Section 80HH had been settled by previous decisions of both the court and the Supreme Court. Citing cases such as CIT vs S.K.G. Engineering Pvt. Ltd. (2006) 285 ITR 423 and Joint Commissioner of Income Tax vs Mandideep Eng. And Pkg. Ind. P. Ltd. (2007) 292 ITR 1 (SC), the court ruled in favor of the assessee based on the established legal precedents.
Issue 3: Regarding the allowance of 1/7th of the premium amount payable on debenture redemption after seven years, the court referred to its judgment in CIT vs Jagatjit Industries Ltd. (2006) 287 ITR 46 (Del) and decided in favor of the assessee. The appeal was consequently disposed of in favor of the assessee based on the decisions made for all three issues.
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