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TMI Tax Updates - e-Newsletter
February 20, 2012
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
FEMA
Service Tax
Central Excise
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Section 139 of the Income-tax Act, 1961 - Return of Income - Exemption to specified persons from requirement of furnishing a return of income under section 139(1) for assessment year 2012-13. - Ntf. No. 09/2012 Dated: February 17, 2012
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Unexplained credits – alleged bogus share application money received – Involvement of the assessee in such modus operandi is clearly indicated by valid material made available to the A.O. as a result of investigations carried out by the revenue authorities into the activities of such “entry providers” - Tribunal erred in confirming the deletion of the addition made u/s 68
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Long-term Capital gains – determination of date of acquisition – property acquired through inheritance - acquired by previous owner prior to 1-4-1981- benefit of indexation shall be available from the year when previous owner first acquired it.
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Salary to partners u/s 40(b) - such individual is not a partner of the assessee-firm in his individual capacity but he is a partner in the capacity of representative of HUF of which he is a karta - deduction u/s 40(b) allowed
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Penalty u/s 271 - validity of assessment proceedings can be looked into during the penalty proceedings even though the assessment itself has not been challenged by the assessee.
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Business expenditure - Since the assessee is engaged in the transport business, the violation of traffic rules are quite normal for which it has to pay some penalties/fines - Since the payments were made for infraction of law, it is hit by explanation to section 37.
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Section 10(15), item (h) of sub-clause (iv) of the Income-tax Act, 1961 - Exemptions - Interest on bonds/debentures - Notified bonds/debentures of Public Sector Companies. - Ntf. No. 07/2012 Dated: February 14, 2012
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Section 10(15), item (h) of sub-clause (iv) of the Income-tax Act, 1961 - Exemptions - Interest on bonds/debentures - Notified bonds/debentures of Public Sector Companies. - Ntf. No. 06/2012 Dated: February 14, 2012
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Income-tax (Second Amendment) Rules, 2012 - Insertion of rule 114DA and Form No.49C. - Ntf. No. 05/2012 Dated: February 6, 2012
Customs
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Adoption of uniform Customs Procedure for calculating the contents of Iron Ore – clarification regarding. - Cir. No. 04/2012-Cus Dated: February 17, 2012
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Anti Dumping Duty on import of carbon black - The challenge by the appellants that the injury analysis and finding on the causal link is defective is far from convincing.
DGFT
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Corrections in Public Notice No.80/(RE2010)/2009-14 dated 13.10.2011 and Public Notice No.83/(RE2010)/2009-14 dated 31.10.2011. - Cir. No. 99/(RE2010)/2009-14 Dated: February 16, 2012
Central Excise
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Clarification regarding admissibility of exemption under area-based Notifications No. 49/2003-CE and 50/2003-CE, both dated 10.06.2003 in specific situations – reg. - Cir. No. 960/03/2012-CX Dated: February 17, 2012
Case Laws:
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Income Tax
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2012 (2) TMI 218
Recognition of income of licence fee – agreement for lease of hotel building with ITC Ltd - fee received assesed under the head “Business Income” – Non- disclosure of such income after A.Y. 1995-96 by assessee on ground that said agreement was unilaterally terminated by them and no amount was due, accrued and payable to them – settlement agreement executed later - Tribunal deleted addition made by Revenue on accrual basis - A.Y. 03-04, 05-06 - Held that:- It is apparent that there are contentious and counter-submissions on the factual matrix, which have to be examined and gone into by the tribunal itself. It is for the tribunal to examine the relevant clauses of the lease agreement and consider the claim regarding unilateral termination, the legal effect thereof and the subsequent settlement agreement between the assessee and ITC Ltd. and the legal effect thereof. Therefore, tribunal will re-examine, the entire aspect and questions afresh .It is, however, clarified that we have not examined the claim or the addition on merits – Decided in favor of Revenue.
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2012 (2) TMI 217
Taxability of Non-Compete fees – Capital gain vs Business Income or capital receipt not chargeable to tax - assessee being director of RCL & SVCL hostily taken over by ICL – consideration paid by ICL vide adjustment towards amount due to RCL – Held that:- It is established that such adjustment of consideration towards amount due to RCL would qualify as non-compete fees. However, consideration was not for sale of any business nor was it for not carrying on any business which he was carrying on, which he had transferred. It was also not a payment for a “right to manufacture, produce or process any article or thing”. The provisions relating to capital gains are therefore not attracted. The amount was paid for “not carrying out any activity in relation to any business” and would fall within the ambit of Sec.28(va)(a), which at the relevant point of time of accrual in the hands of assessee viz., 27.10.1999, was a capital receipt not chargeable to tax. Such receipts became taxable on and from 1-4-2003. As held in the case of Guffic Chemical Industries (2011 - TMI - 202401 - Supreme Court), the provisions of Sec.28(va)(a) are not clarificatory and were applicable only prospectively from 1-4-2003. Therefore the receipts in question were capital receipts and not chargeable to tax in AY 00-01 – Decided against the Revenue.
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2012 (2) TMI 216
Evasion of income tax – abnormal dealings – search conducted - donations collected in the names of approved trusts and institutions without authority and scrupulously aiding the donors in siphoning off the donated money back to them in dubious ways, after retaining a part of the alleged donation as commission - respondents prima facie seem to have caused circumstances for enabling evasion of income tax penalty or interest chargeable/ imposable - Held that:- Present case was at the stage of framing of charges, both the courts below have erred in discharging the respondents based on wrong interpretation of provisions of section 276 C (ii). Consequently, both the orders are hereby set aside and matter is remanded back to the Court of CMM, Delhi with direction to assign it to the court of competent jurisdiction.
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2012 (2) TMI 215
Taxability on compensation received on transfer of “Development Rights” being the FSI and the “right to load TDR” on the land - capital gain - development agreement with developer - CIT (A) held FSI and TDR to be separate & distinct assets - while TDR did not have a cost, the FSI did and if both were transferred together, there was a “cost” for the “asset” and capital gains was chargeable – assessee contesting the same - Held that:- Receipts on assignment of FSI including originating from the plot of land and/or married to it and right to load consume and use FSI credit by way of TDR which was the subject matter of transfer by the Assessee was a capital asset in respect of which the cost of improvement could not be ascertained and therefore the receipts of consideration for transfer of the said rights cannot be brought to tax as the said receipts will be capital receipts and not capital gain. See CIT vs. B. C. Srinivasa Setty (1981 - TMI - 5845 - SUPREME Court) – Decided in favor of assessee. Contention raised regarding dis-allowance of deduction u/s 24 by A.O. it is held that though the order of the AO or CIT(A) are not clear on this aspect, but the inevitable conclusion that one can reach is that the AO has allowed deduction u/s.24(a) – Decided against the assessee.
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2012 (2) TMI 214
Set- off of loss – partnership on dissolution on 18.09.04 taken over by one partner – loss of partnership set off against income earned as individual – A.Y. 05-06 – Held that:-When the assessee took over the business of the erstwhile partnership firm, it was not a case of succession by inheritance. Partnership firm is a separate and distinct unit of assessment and ceased to exist on dissolution on 18.09.04. Income of partnership firm is to be assessed for the period 1.4.2004 to 18.9.2004. After 18.9.2004, business is carried on as a sole proprietor. The income earned by the appellant, as an individual, would include his share of loss as an individual but not the losses suffered by the partnership firm – Decided against the assessee.
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2012 (2) TMI 213
Depreciation on Plant & Machinery - sugar mill - Revenue contending that same is not allowable on ground that mill was non-functional during the period 29.02.2000 to 19.12.2006 – A.Y. 2002-03, 2005-06 and 2006-07 – Held that:- Mill was not functional in the intervening period for the reasons beyond the control of the assessee company but immediately after the revival scheme was sanctioned by High Court, the mill started working in the beginning of next sugar season. Since, Plant and machinery were kept ready for use with the intention and desire to make it operational as soon as liquid funds were made available and the fact that the factory was ultimately made operational depreciation is therefore allowable – Decided against the Revenue.
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2012 (2) TMI 212
Rectification - Capital Gain - Deduction under 54F - Tribunal findings: House purchased from borrowed fund and partly from relatives, sales consideration were not utilized - Assessee applied for rectification of order - Held That:- Tribunal can rectify only those mistake which are apparent from record. Order passed under 254(1) is final. 254(2) does not have existence de hors the order under section 254(1). Re-calling of the order is not permissible under section 254(2). - Recalling of an order automatically necessitates rehearing and re-adjudication of the entire subject-matter of appeal. - Application of assesee turned down.
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2012 (2) TMI 211
Condonation - Dealay of 40 days - According to the assessee, all the income-tax matters were being looked after by a tax practitioner, Sri Uttam Roy, who due to his ill health failed to represent the cases of the assessee before the department during the period from June, 2009 to September, 2010. - Held That:- In view of Katiji & Ors.(1987 - TMI - 40082 - SUPREME Court) condonation allowed. Penalty - Discrepancy in Stock of jewellery - Held That:- the assessee offered the same for taxation without any protest before the survey party itself. That being the case, there is no mala fide on the part of the assessee and the assessee cooperated with the department by filing the details, names, addresses along with the quantity of goods in respect of karigar’s gold and customer’s gold lying in the vault of the assessee and, therefore, the bonafide action of the assessee has to be accepted - In view of CIT v/s Reliance petroproducts (2010 -TMI - 75701 - SUPREME COURT), decided in favour of assessee. Receipt on account of extra work - In respect of extra work the term ‘white’ and ‘cash’ was written. Admittedly, vide assessee’s letter dated 20/4/2009, ‘white’ indicates cheque receipt and ‘cash’ indicates cash receipt. - held that:- The explanation offered by the assessee is not satisfactory in the eye of law. - Levy of penalty sustained - decided against the assessee.
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2012 (2) TMI 210
Revocation - Assessment under 143 - Income calculated under normal provision of act - profit on sale of investment excluded - Book Profit under 115JB higher - CIT: assessment do not put finality to Book profit, invoked 263 - Held That:- In view of CIT vs. Hemraj Udyog (2002 - TMI - 12196 - RAJASTHAN High Court), Commissioner of Income Tax has power to revise the order of the AO on the issues which were not taken in appeal before the CIT. But if the limitation has expired, the CIT cannot revise the original order of the AO beyond the period of limitation. Since in the instant case, AO passed order on 28.03.2006, notices issued by the CIT u/s.263 on 17.11.2009 and 01.02.2010, therefore, the notices issued u/s. 263 are clearly beyond the period of limitation.
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2012 (2) TMI 209
Car expense being personal in nature - Held That:- When assessee himself disallowed 1/3rd of of car depreciation, contention of the assessee that no disallowance is called for out of expenses incurred towards interest, insurance and taxes do not sustain. Dis-allowance on Incomplete bills & vouchers - Assessee: additions upto 28% on higher side - Held That:- Additions of Rs 1,00,000 would meet end of justice. Annual value of property - Enhancement from 6000 pm to 6500 pm - Held That:- Assessee had not produced any evidence to show that the fair market value has actually come down. Decided against assessee.
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2012 (2) TMI 195
Traveling Expense - "Personal" OR "Business" - CIT(A): expenses were related only to travel & conveyance undertaken by the employees - Held That:- No evidence was brought on record by revenue to controvert the finding of CIT(A). Appeal of revenue rejected. Export Promotion - CIT(A) reduced dis allowance to 20% against 25% made by AO - Held That:- In respect of foreign tours, keeping full details, bills & vouchers is impossible. When in past years above position (20% disallowance) was accepted there is no reason to interfere with the same. Bogus Purchases - Held That:- Payments made by A/C payee cheque, copies of ledger has been filed with paper book. CIT(A) rightly deleted additions. Undisclosed Income - "Donations" shown as gifts - Held That:- Assessee has filed copies of statement of donations with relevant receipts issued by the donees - personal bank account with HSBC Bank reflecting donations made - and balance sheet with Income & Expenditure account and Receipts & Payment Accounts etc. Donation made by A/C payee cheque same are duly reflected in the assessee’s individual accounts. Decided in favour of assessee.
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2012 (2) TMI 194
Unexplained credits – alleged bogus share application money received – assessment reopened on the basis of information received by A.O. from DIT (Investigation), furnishing information regarding entry operators/accommodation providers – statements of directors of company providing entry taken - Tribunal deleted addition made u/s 68 – assessee stating that documentary evidence regarding identity and creditworthiness of the share applicants and the genuineness of the transactions were produced - Held that:-The Tribunal, apart from adopting an erroneous legal approach, also failed to keep in view the material that was relied upon by the Assessing Officer. Involvement of the assessee in such modus operandi is clearly indicated by valid material made available to the A.O. as a result of investigations carried out by the revenue authorities into the activities of such “entry providers”. Therefore, we are unable to uphold the order of the Tribunal confirming the deletion of the addition made u/s 68 – Decided in favor of Revenue.
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2012 (2) TMI 193
Validity of re-opening of assessment beyond the period of four years of the end of the relevant A.Y. - Investment company – reopened on ground that provision for diminution in the value of the unquoted investments was an unascertained liability and ought to be added back to Net Profit - Original order framed u/s 143(3) – A.Y. 03-04 - Held that:- In the absence of any specific provision in Section 115JB at the time when the original assessment was made and having regard to the debatable nature of the issue as to whether Clause (c) of Explanation 1 to Section 115JB would cover cases of amounts set aside for diminution in the value of investment, it can never be postulated that it was the duty of the assessee to have instructed or informed the A.O. as to the legal inference which he should draw from the primary facts. There was thus no failure on the part of the petitioner to disclose full and true primary particulars at the time of the completion of the original assessment. The notice issued u/s 148 is therefore, declared to be without jurisdiction – Decided in favor of assessee. Validity of re-opening of assessment of A.Y. 06-07 questioned on basis of judegment in A.Y. 03-04 - adjustment to the book profit u/s 115JB not made for provision for NPA and for doubtful debts – return processed u/s 143(1)(a) – Held that:- Firstly, notice issued u/s 148 is within the period of 4 years from the end of relevant A.Y. Secondly, issue whether the provisions in question should be added back in terms of the relevant clause in the Explanation-1 below Section 115JB is debatable but the fact remains that it could not be examined since the return filed by the assessee was merely processed u/s 143(1)(a) and, therefore, no inference or opinion could have been formed by A.O. as to the disallowbility of the provisions. Validity of notice issued u/s 148 upheld – Decided against the assessee.
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2012 (2) TMI 192
Long-term Capital gains – determination of date of acquisition – property acquired through inheritance - acquired by previous owner prior to 1-4-1981 – assessee share in property determined by virtue of family settlement dated 11-9-2000 - Revenue contending indexed cost of acquisition to be as per F.Y. 2000-01 & not 1981-82 – Held that:- Assessee succeeded to this property and in such eventuality the word “hold” is to be interpreted keeping in mind the judgment in the case of CIT Vs. Manjula J. Shah holding that benefit of indexation shall be available from the year when previous owner first acquired it – Decided against the Revenue.
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2012 (2) TMI 191
Principle of natural justice - Un-explained deposits in bank - Held That:- Notices issued only on December 2006 and the assessee was given time upto 28.12.2006 vide notice dt 22.12.2006 to file the details. The assessee made a request on 28.12.2006 that he is sick and could not gather the necessary details. The Assessing Officer turndown the request of the assessee and passed the assessment order on the next day i.e. 29.12.2006. Such an order is against Principle of natural justice and thus do not sustain.
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2012 (2) TMI 190
Registration under 12AA - Object: Develop automobile design, Architectural design - Held That:- Possibility of a future contingency with a remote probability will cannot make the Trust itself a commercial venture.The clause of levying fees from apprentices will not per se convert the assessee-Trust to a commercial establishment.
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2012 (2) TMI 189
Share Capital from Undisclosed Sources - Notice under 133(6) returned unserved - No Directors produced nor the books of account - Investigating report: Entities engaged in providing entries no actual business carried on - Held That:- The addition could not sustain as the primary onus was discharged by the appellant by producing PAN number, bank account, copies of income tax returns of the share applicants, etc. - Assessing Officer was influenced by the information received by the Investigating Wing and on the general modus operandi, whether such modus operandi existed in the present case or not was not investigated by the Assessing Officer. AO is mistaken in question assessee for source of receipt of application money such enquiries should have been made to M/s Diamond Protein Ltd.
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2012 (2) TMI 188
Principle of mutuality - Assessee co-operative society running Gymkhana, received deposit - Interest Income assessable as business Income - Held That:- In view of Effluent Treatment Plant (2010 - TMI - 76801 - BOMBAY HIGH COURT),principle of mutuality is not applicable. - As regards the claim u/s 80P is concerned, if any income by way of interest or dividend derived by the cooperative society from its investment with any other cooperative societies, then deduction u/s 80P is allowable in respect of the said income. - case remanded back to verify the deposits. Transfer fee upto 25,000 covered under mutuality - Amount not received under coercion or under pressure - Held That:- In view of Sind Cooperative Hsg Ltd (2009 -TMI - 34176 - BOMBAY HIGH COURT), claim of assessee allowed. Amount received for additional FSI under TDR rules - AO: amount charged per sq.ft is higher than rate charged by local authority - Held That:- When there is no profit motive or business by collecting such fund by the assessee society, then only because of the rate charged by the assessee society from its members is higher than the rate of local body cannot be a ground for rejecting the principle of mutuality.
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2012 (2) TMI 187
Deduction under 10A - Conditions unfulfilled - transfer of more than 20% of the plant and machinery from the old unit to the new unit - Held That:- We remit the issue of deduction u/s 10A of the Income-tax Act to the Assessing Officer with a direction to verify if the plant and machinery transferred from the Rajajinagar unit to the Whitefield unit is less than 20% as demonstrated by the assessee and also to verify as to whether the assessee satisfies the conditions under the CBDT Circular No. 1 of 2005. Allowed for statistical purposes.
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Customs
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2012 (2) TMI 198
Acquittal of charge u/s 135(1) (a) of the Customs Act, 1962 – CLP filed u/s 378(3) of the Code of Criminal Procedure, 1973 seeking special leave to appeal against the said judgment – seizure of gold biscuits – Held that:- In present case, adjudicating authority as also the appellate authority both found the respondent guilty on merits but the revisional authority exenorated him on account of benefit of doubt. Further, there is no retraction of statement u/s 108 of the Customs Act by the aforesaid 3 witnesses and retraction of statement of accused/respondent is highly belated. Therefore, the case requires full consideration and re-appreciation of entire prosecution case. Consequently, leave is granted to the petitioner/department for filing an appeal against the impugned order of acquittal.
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Corporate Laws
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2012 (2) TMI 199
Companies Act 1956 - Petition filed u/s 433(e) & 433(f) of Companies Act, 1956 seeking to wind up the Respondent-Company - 'respondent - Company', is a partnership firm engaged in the business of accepting deposits from the general public – non-repayment of deposit of petitioner – Held that:- Respondent Company is unable to clear the debts of the creditors and therefore, the petitioners have made out a case for winding up of the Company – Decided in favor of petitioner.
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FEMA
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2012 (2) TMI 177
Condonation of delay of 570 days – appeal filed against order passed by Appellate Tribunal constituted under the FEMA, 1999 – appeal filed to Appellate Tribunal against an order of adjudication passed on 30.10.2003 by the Special Director of Enforcement, after the repeal of the FERA, 1973 – Held that:- An appeal against the order of the Appellate Tribunal would be governed by the provisions of Section 35 of the FEMA, 1999. This Court does not have any jurisdiction to condone a delay in excess of sixty days beyond the period of sixty days prescribed for the filing of an appeal – Decided against the petitioner.
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Service Tax
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2012 (2) TMI 179
Clearing & Forwarding Agent Services - determination of assessable value including incidental and ancillary expenses connected with and integral to the taxable service provided – Held that:- The issue of inclusion is no more in res integra in view of decision in the case of Sri Bhagavathy Traders vs. C.C.E., Cochin (2011 -TMI - 206710 - CESTAT, BANGALORE). Further, it may not be improper to grant waiver of penalty imposed u/s 76 of Finance Act, 1994 since the determination of assessable value was in debatable stage at the inception of law. However penalty imposed u/s 77 of the said Act is confirmed – Decided partly in favor of assessee.
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Central Excise
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2012 (2) TMI 176
Quantification of reversal of credit – electricity - credit reversed @ 10% of the value of the electricity - no separate records are maintained in respect of Cenvat Credit on the common inputs used in the manufacture of dutiable as well as exempted goods - Held that:- In as much as the issue relates to the correct quantification of reversal of credit which can only be decided at the original adjudicating authority level, we set aside the impugned order and remand the matter to Commissioner(Appeals) for quantifying the credit amount required to be reversed. See Maize Products vs CCE (2008 - TMI - 48307 - High Court Of Gujarat At Ahmedabad)
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