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Income Tax
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2012 (4) TMI 403
Revenue expenditure u/s 37(1) - Deletion of the addition made by the AO on account of commission claimed on payment to various agents in respect of sale of machinery – Revenue contested that seven buyers had stated categorically in their written responses that in the transactions of purchase made by them of the web offset printing machines from the assessee, no commission agent was involved – Held that:- For AY 2005-06 any amount paid by way of commission to persons in respect of these seven buyers cannot be regarded as business expenditure and the same would not be allowable as Revenue expenditure under Section 37(1) but as far as the other payments by way of commission are concerned, there is no evidence which has been produced by the Revenue – partly allowed in favour of revenue. Assessment Year 2006-07 – Held that:- No evidence from any of the buyers indicating that there was no commission agent between them and the assessee company - there is no material on record nor is there any other evidence which the Revenue could produce to indicate that the commission paid to the commission agent was not genuine – against revenue.
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2012 (4) TMI 402
Invoking the provisions of section 50B to sale of assets of the M Seal Division of the Appellant - assessee contented that it was an itemized sale - Slump sale – Held that:- A close analysis of the agreement and the deeds entered into by the appellant with PIL confirms that the business as a whole was sold and not an itemized sale of assets - Directors' report and Auditors' report also talk about 'sale of business' - the business of Sealants and Adhesives of assessee includes all the processes from manufacturing to marketing and as per the ‘Agreement to Grant’ Appellant had agreed to sell/transfer and assign all rights, benefits, titles, interests of any nature in relation thereto 'business of Sealants and Adhesives', thus leading to sale of entire business – as a result of the nine agreements/ deeds entered with PIL business of Sealants and Adhesives carried out by the Appellant had gone to PIL irrevocably - agreements/deeds entered in to by both the parties prove that they are part of the one transaction only and to considered as ‘ slump sale' – against assessee.
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2012 (4) TMI 401
Rejection of claim of exemption under section 54– assessee submitted that non compliance with the provisions of section 54 within the time prescribed was for reasons beyond her control as the money which was blocked by her by paying advances to procure the property was not realized within the time - Held that: - Payment of advance and return of the same are all matters of normal commercial agreements and cannot act as supervening impossibilities - two out of the three persons to whom advances were made are assessee’s own sons to whom she handed over the money who enjoyed it for long time - these events do not lead to supervening impossibilities to constructed the residential property beyond three years of the prescribed time limit – against assessee.
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2012 (4) TMI 400
Assessee in default - TDS u/s 194J - Trust directly makes payments to various hospitals as per the MOUs it entered with such hospitals. - Held that: A close reading of the above provisions of S.194J and S.2(31) of the Act, makes it clear that the assessee, which is claimed to be having no source of income and constituted without any profit motive, as well as the hospitals to which payments have been made clearly constitute 'person' as defined in S.2(31) of the Act, and the services rendered by the hospitals, being in the nature of medical services, also comes within the scope of 'professional services' as defined in Explanation to S.194J, thereby, making the payments made by the assessee towards such services fall within the ambit of professional services. - Decided against the assessee. Regarding bifurcation of payment made to hospital - learned counsel for the assessee, submitted that elements of payment towards bed charges, medicines, follow up services, outpatient services, transportation charges, implants, expenditure incurred for conducting camps at village levels, do not strictly fall within the scope of 'fee for professional services' which alone can be considered as falling within the scope of the provisions of S.194J - Decided in favor of the assessee by way of direction to AO to bifurcate the payments made by the assessee trust to the hospitals into various element, and confine the demand raised in terms of S.201(1) of the Act, only to the payments which assume the nature of fee for professional services, as noted above
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2012 (4) TMI 399
Claim of exemption u/s 54B and expenditure incurred towards improvement of land - Sale of 1.81 acre of land by Assessee and his co-owners – assessee out of his 1/3rd share in the sale consideration purchased another piece of agricultural land - claim disallowed - Held that:- It is essential that for claiming the benefit of exemption of section 54B, capital asset sold should have been used either by the assessee or his parents for agricultural purposes in the two years immediately preceding the date on which the transfer took place - detailed enquiry ascertain by AO and the land revenue authorities categorically statement that as per revenue records no crop was cultivated/agricultural activity undertaken on the land owned by the assessee - no concrete evidence has been brought on record by the assessee to controvert the finding of facts recorded by the lower authorities - production of statements of neighbours of the assessee are vague and sketchy - the assessee has miserably failed to prove that the land in question was agricultural land and he had cultivated crops in the land – against assessee.
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2012 (4) TMI 398
Deduction u/s 80IB - Date of commencement of manufacturing activity - factory license was issued by the Chief Inspector of Factory only on 3.5.2005 - assessee had in fact began such manufacturing prior to 31.3.2004. - AO disallowed deduction - held that:-Primarily we are of the opinion that while holding that assessees are not entitled to deduction under section 80IB(4) of the Act, we are not reading into it any other requirements contained in any other Act but are reading the requirements contained in the proviso to Sub-section(4)of Section 80IB of the Act so as to require that commencement of the industrial activity must be lawful and any manufacturing activity which is fundamentally unlawful or prohibited by law and against public policy, would not be covered by said provision. in cases where the application for license was already made before 31.3.2004, but obtained shortly thereafter, we are of the opinion that such lapse must be viewed as one which is purely technical even without accepting the contention of the counsel for the assessee that grant of license subsequently would relate back to the original date of application. - Decided in favor of the assessee
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2012 (4) TMI 397
Deduction u/s 80-I - denial of deduction u/s 80-I(9) - Close relations between the assessee - company and the foreign buyer - burden of proof - held that:- there being no material to indicate that the course of business had been so arranged as to inflate profits, i.e. to show a. higher profit margin to the two export units of the assessee, we are unable to answer the question in favour of the Revenue, but the only answer can be that the Tribunal was justified in taking this view and therefore, the first question is answered in the affirmative and in favour of the assessee and against the Revenue. Deduction u/s 10A read with section 80-I(9) - maintenance of separate books - held that:- the question basically arise because the Assessing Authority rejected the method of accounting followed by the assessee for the purpose of computing its profits in terms of the profit and loss account and the Appellate Commissioner as well as the Tribunal have found that there was no reason or justification for the Assessing Officer to have rejected the books of account as maintained by the assessee which was according to standard accounting practices. Assessing Officer is of the view that the assessee was not entitled for the deduction in terms of Section 43B of the Act as the actual payments had not been made good by placing before the Assessing Officer the commensurate material for the accounting period of excise duty and customs. - The second question posed for our answer is answered in the negative and against the assessee but after setting aside the orders of the Tribunal and the Appellate Commissioner on this aspect the matter is remanded to the Assessing Officer on this aspect i.e., regarding the claim of the assessee for reducing the claim of the MODVAT credit available to it at the end of the accounting period from the date of the closing stock and for such purpose, the Assessing Officer shall give an opportunity to the assessee to place material and pass orders afresh on this aspect of the matter. – Appeals are allowed in part
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2012 (4) TMI 396
Disallowance u/s 40(a)(ia) - Sub contractor - Non deduction of TDS under Section 194C - hiring charges - tippers and excavators. - transport charges by utilising the trucks of other owners - The assessee being a transport contractor having executed whole of the contract for transportation by hiring lorries from other lorry owners who simply placed the vehicles at the disposal of the assessee without involving themselves for carrying any part of the work undertaken by the assessee could not be said to have made the payments for his business involving deduction of tax at source to another contractor. The work contract as defined exclude payments for hiring out lorries therefore could not be subjected to consider the issue of claiming of higher depreciation also. The assessee owns those assets which are leased out for the purpose of hiring out and the nature of business clearly entitles the assessee to claim higher depreciation when the assessee for the volume of work hires other trucks from other truck owners for executing its contract. - No TDS - Dis-allowance deleted - Decided in favor of assessee. Higher rate of depreciation - lease out of trucks - held that:- as the assessee has clearly hired them out by way of a sub-contract its machinery and equipments which income has been returned by the assessee therefore could not be said to have been reduced from the expenditures incurred for hiring out the vehicles of the other truck owners. - The word "hired" used by the law was to only indicate that some income should be rendered to taxation by utilization of those assets and not that assets which can only be hired out can be used for claiming higher depreciation. The fact that the assessee chose to lease out the trucks does not on that score disentitle higher rate of depreciation. - - Decided in favor of the assessee
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2012 (4) TMI 395
MAT - Addition made by the AO u/s. 115JB - capital gain have not been routed through profit & loss account - held that:- the Act has recognised that there may be cases where F.Y of the company may be different from the previous year and if the financial accounts are adopted in the previous year then such accounts must have similar Accounting Policies and Accounting Standard etc. - Now, who is going to check this aspect? Obviously, the Registrar of Companies is not concerned with these aspects whether accounts adopted for the previous year are same or not because the Registrar of Companies at best is concerned whether the accounts adopted and laid before the annual general meeting are in accordance with the requirements of Part II and Part III of Schedule VI of the Companies Act, 1956. Therefore, in view of these enlarged requirements, we are of the view that AO has powers to go behind the accounts and see whether same have been prepared in accordance with the requirements of Part II and Part III of Schedule VI of the Companies Act, 1956. Atleast u/s.115JB AO has power to go behind the accounts. - it is clear that book profits have to include the profits earned from capital gains. - assessee had earned certain profit on sale of shares and some industrial units which admittedly have not been credited to the profit & loss account which is contrary to the significant accounting policy of the assessee itself as well as against the requirements of Accounting Standard AS-13 and requirements of Part II and Part III of Schedule VI of the Companies Act, 1956. Therefore, in our opinion, AO has rightly brought these items to taxation under the MAT provisions of sec. 115JB. - Decided against the assessee.
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2012 (4) TMI 394
Disallowance of long term capital loss, arising on conversion of US 64 units into 6.75% tax free bonds, after indexation of cost, as claimed by the Appellant - Exemption u/s 10(33) - held that:- The provisions are not meant to enable an Assessee to claim loss by indexation for set off against other capital gain chargeable to tax. The intention of the legislature was only to restore status quo ante and not to confer any benefit of carry forward of capital loss for set off against capital gain chargeable to tax in the subsequent Assessment years. The economic reasons for insertion of Sec. 10(33) of the Act clearly shows that the source viz., transfer of capital asset being units of US 64 itself that has been excluded by the will of the Legislature and not the capital gain alone. - Decided against the assessee. Regarding deduction u/s 80HHC - The assessee had claimed a sum of ₹ 1,14,844/- as deduction u/s. 80HHC of the Act, however the AO allowed deduction of only ₹ 1,00,600/- because this was the sum specified in the report in Form 10CCAC which has to be filed by the Assessee in terms of Sec. 80HHC(4) - It is not in dispute that in Form No. 10CCAC while calculating the deduction u/s. 80HHC of the Act Excise Duty had been included as part of the total turnover - the tax liability has to be determined in accordance with law and the mistake made in the certificate of the Chartered Accountant in Form 10CCAC should not have been relied upon by the revenue for reducing a legitimate claim for deduction u/s. 80HHC of the Act made by the Assessee - Held that: the claim made by the assessee for deduction u/s. 80HHC at a sum of ₹ 1,14,844/- has to be accepted - Decided in favor of the assessee
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2012 (4) TMI 393
Search and seizure - Claim of interest under section 132B(4) - The petitioner claims that an amount of Rs. 1,60,000 seized from him was neither appropriated nor treated as advance tax - Section 244A deals with interest on refunds. - It states that whether the refund of any amount becomes due to the assessee under the Income-tax Act, he is entitled to receive the said amount with simple interest upon it calculated at 1 per cent. for every month or part of months comprised in the period or periods from the date of payment of tax or penalties to the date on which refund is granted - Held that:- respondents are, therefore, liable to pay interest on the above amount of Rs. 1,60,000 from July 5, 1996, till December 2, 1996, as calculated under section 244A(1)(b). - Decided in favor of the assessee
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2012 (4) TMI 392
Addition on account of foreign education expenditure of the son of the Director of the assessee company - Held that: The education of the children is sole and exclusive responsibility of the parent and cannot be mixed up with the business of the family owned company - Expenditure on higher education of the son of the director, in the facts and circumstances of the case cannot be said to be wholly and exclusively for the purpose of the business of the assessee and without any extra commercial circumstance – Decided against the assessee. Regarding depreciation of BSE card and FEDAI membership - It is clear from the developments of BSE as well as from the amended provisions of the Act that after corporatisation of BSE and corresponding amendment in the relevant provisions of the Income Tax Act, the Membership Card of the erstwhile BSE ceased to exist and the cost of shares of the recognized Stock Exchange allotted in lieu of the card under the scheme of demutualization shall be the cost of acquisition of original membership of the Stock Exchange; whereas the cost of the capital asset being trading or clearing rights of recognized Stock Exchange acquired under the said scheme shall be deemed to be nil. As regards the membership of FEDAI is concerned, despite specific query from the Bench about the status of the membership card of FEDAI; whether the same development/charges as taken place as in the case of membership card of BSE, the ld AR has expressed his inability to say anything and requested that the matter may be remanded to the record of the CIT(A) for consideration of all the relevant facts and decide the same – Decided in favor of the assessee by way of remand to AO Deduction for payment of penalty on violation of bye-laws of Stock Exchange - held that:- penalty for short payment of margin money was a compensatory payment under rule of stock exchange which is allowable as revenue expenditure. Membership fee paid to Dubai Gold and Commodity exchange. - Held that:- the membership expenditure is undoubtedly a capital in nature. The membership of DGCX was once for all and the expenditure would have an enduring benefit. Therefore, in case the assessee would have taken membership, the entire membership fee was to be treated as a capital expenditure.
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Customs
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2012 (4) TMI 391
Application for benefit of DEPB scheme rejected – Hon'ble High Court directed not to deny the benefit of conversion but the Commissioner passed order rejecting the request - Held that:- Policy Circular No.44(RE-2010)/2009/14, dt.1.11.2011 only directs the regional authorities to decide the admissibility of DEPB benefit in cases where the Commissioner of Customs has already allowed the conversion - in case of shipping bills filed prior to 22.4.97, DEPB benefits could not have been allowed at all since Porbandar was not a port specified for export under DEPB shipping bills - the appellant has failed to follow the requirements of Customs Public notice as none of the shipping bills were assessed by the Assistant Commissioner and the shipping bills were not filed 3 days in advance of shipment at the port of clearance – as per CBEC Circular No.10/1997-Cus, dt.17.4.97, the shipping bills for export made under DEPB scheme should bear Blue Colour Strip at the top and should indicate the serial number of the export product in the Public notice issued by DGFT specifying the rate of entitlement and the rate claimed - all substantive conditions for claiming benefit of DEPB scheme were not fulfilled conversion cannot be allowed – against assessee.
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2012 (4) TMI 390
Import of goods declared as M.S. Seamless pipes - Department found the goods were of used nature – confiscation of goods and imposed a redemption fine and penalty – Held that: - The inspection done in front of independent panchas witnesses, and 11 photographs of imported goods depicts the consignment of pipes of used nature - the appellant has not produced any evidence to come to a conclusion that the pipes imported by him are sold as capital goods – redemption fine imposed by adjudicating authority is reduced from Rs.1,20,000/- to Rs.75,000/- (Rupees Seventy Five Thousands only) and penalty is reduced from Rs.60,000/- to Rs.30,000/-against assessee.
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Corporate Laws
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2012 (4) TMI 389
Application under Section 446(2)(b) by Official Liquidator on behalf of the Company in liquidation – demand of a sum of Rs. 6,47,394/- with interest thereon from the respondent company - the receivable ledger for the period 1.6.2000 to 01.04.2004 reflects the said amount as against the name of the respondent with reference to the invoices under which the machines are supplied to the respondent – Held that:- the invoices claimed as dues in the statement maintained by the Company-in-liquidation are the very same invoices, the supplies made thereunder have been rejected - said invoice is found in Ex.P2 for the period commencing from 01.06.2000 and the rejection of the same is indicated in the statement maintained by the respondent at Ex.D2 for the period from 01.07.2000 to 31.07.2000 - claim as made in the application has not been proved.
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Service Tax
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2012 (4) TMI 407
Eligibility of the respondent for refund under Notification No.41/2007-ST, dt.06.10.2007 - Commissioner (Appeals) has allowed the refund claim in respect of Service Tax paid on Port services, Terminal Handling Charges, CHA services, GTA services, Wharfage charges – Held that:- The services such as Stevedoring, transporting the cargo after unloading from the vessel, are covered under the Port service - once the Service Tax was paid under the category of Port service, at the end of the receiver of the service the eligibility for the credit cannot be questioned - the decisions in the case of Western Agencies Pvt.Ltd. Vs CCE Chennai (2011 - TMI - 206087 - CESTAT, CHENNAI - LB), covers the services in respect of which the refunds have been claimed by the respondents - as regards CHA service and GTA service it is clear that the respondents are eligible for CENVAT Credit upto the place of removal and in the case of export on FOB basis, the place of removal has to be taken as Port – against revenue.
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2012 (4) TMI 406
Penalty u/s 76 on delayed payment of Service Tax – Held that:- No penalty can be imposed if the Service Tax liability and interest thereof stand deposited under the Section 73(3) - Show Cause Notice even for penalty cannot be issued if Service Tax liability and interest thereof has been met – decided case Krishna Security & Detective Services Vs CST (2011 - TMI - 211577 - CESTAT, AHMEDABAD) – against revenue.
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2012 (4) TMI 405
Service Tax liability under the reverse charge mechanism – Held that:- As the provisions of Section 66A of Finance Act, 1994 were brought into play w.e.f. 18.04.2006 no liability arises of payment of service tax - the issue is no more res-integra - as decided by Hon'ble Supreme Court in the case of Indian National Shipowners Association Vs UoI (2010 - TMI - 78723 - Supreme Court of India) – in favour of assessee.
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2012 (4) TMI 404
Setting aside the penalties under Section 76 & 77 by first appellate authority – Held that: - For the period October 2004 to March 2006 photocopies of the Service Tax returns filed have been produced depicting that it has been filed with Superintendent of Service Tax, Range Gandhidham - the same has been filed in time and hence no penalty can be imposed under Section 77 - For Quarter July 2006 to September 2006 Form ST-3 return produced by the assessee specifically indicating the taxable service rendered from said Quarter is ‘Nil’ - if there are no services rendered during the relevant period there cannot be any demand of Service Tax liability and consequently no delayed payment – against revenue
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2012 (4) TMI 386
Whether the appellant is liable to discharge the Service Tax liability on the commission paid to the commission agents situated abroad for procurement of sales orders under reverse charge mechanism from 09.07.04 to 15.06.05 – Held that:- As the provisions of Section 66A of Finance Act, 1994 were brought into play w.e.f. 18.04.2006 no liability arises of payment of service tax - issue is decided by Hon'ble Supreme Court in the case of Indian National Shipowners Association Vs UoI (2010 - TMI - 78723 - Supreme Court of India) – in favour of assessee. Demand of CENVAT Credit on Service Tax on the outward transportation – Held that:- The judgment of Larger Bench of the Tribunal in the case of ABB Ltd Vs CCE (2010 - TMI - 202803 - CESTAT, BANGALORE) held that the CENVAT Credit on the Service Tax paid on outward transportation is related to the business and is covered under the definition of input services under Rule 2(l) of CENVAT Credit Rules, 2004 ,thus squarely cover the issue in their favour of assessee.
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Central Excise
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2012 (4) TMI 388
Search at factory premises of the appellant – shortages of finished goods noticed – levy of demand and interest with equivalent amount of penalty u/s 11AC r.w.r. 25 of Central Excise Rules, 2002 and penalty on the partner of the assessee – Held that: - Invoices issued by appellant were for CTD bars of various sizes and dimensions recorded in RG-1 during the period in question - daily stock account maintained during this period the opening stock indicated 585.293 MTs which is the closing balance of stock of the finished goods on the date of visit of the officers to premises - if the appellant had taken the opening stock as the same as was on the date of visit of the officers and had cleared finished goods on payment of appropriate duty, it cannot be said that the duty liability arises - there cannot be demand of duty on the same product, one by adjudication order and another by way of discharge of appropriate duty by preparing duty paying invoices - set aside the duty liability, interest and penalty on the said amount. Shortage of waste & scrap – Held that: - the appellant has not produced any evidence for clearances of said waste & scrap subsequently on discharge of appropriate duty – uphold the demand along with interest - the appellant is liable to be penalized under Section 11AC to the equivalent amount can discharge an amount of 25% as penalty, provided he discharges entire duty liability along with interest and 25% of the duty amount as penalty within 30 days from the receipt of order. Penalty imposed on the partner – Held that: - the penalty imposed on the partner is reduced from Rs.1, 50,000/- to Rs.25, 000/-
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2012 (4) TMI 387
Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB) cannot be treated as Bituminous mixtures falling under Chapter sub-heading No.27150090 and shall continue to be classified under Chapter sub-heading No. 27132000 – as decided by Hon'ble Supreme Court favoring the order of the Tribunal in appellant s own case – Held that:- the Revenue is in appeal against the Order-in-Appeal wherein the first appellate authority the judgment of the Tribunal in appellant's own case - since the Apex Court has upheld the order of the Tribunal in respect of very same assessee, no merit in the appeal filed by the Revenue - against revenue.
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2012 (4) TMI 385
Claim of interest on refund as Rule 5 of CCR, 2002 - exported Copper Cathode and Copper Rods without payment of duty but under Letter of Undertaking in place of bond for period May 2002 to December 2002 and April 2001 to August 2001 - the assessee bought raw material Copper Anode from their sister concern - assessee claimed interest to be paid on the refund claim filed by them on 29.09.01 and 31.01.03 – Held that:- The refund has been ordered under Rule 5 of the Rules and there was a delay in sanctioning the refund the provisions of Section 11BB of the Act would clearly be attracted as rightly held by the Tribunal - entitlement to interest on delayed refund of Cenvat Credit arises - interest at the appropriate rate as provided under the law under Section 11BB will be payable to the appellant from and after 3 months of the date of refund claim filed by them and on the amount calculated on the reduced balances – against revenue
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2012 (4) TMI 384
Stay Petition for the waiver of pre-deposit of duty, interest and penalty confirmed by the adjudicating authority and upheld by the first appellant - the applicant didn't appeared - Held that:- An identical issue decided by this Bench in the case of Shri Manohar Mali Vs. CCE Surat - impugned order set aside and matter is remanded back to adjudicating authority to reconsider.
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2012 (4) TMI 383
Stay Petition - adjudicating authority as well as the first appellate authority has confirmed the demand against the appellant as appellant has availed CENVAT Credit on ineligible inputs - Held that:- The issue is squarely covered by the judgment of the Larger Bench of the Tribunal in the case of Vandana Globals Vs. CCE Raipur (2010 - TMI - 76147 - CESTAT, NEW DELHI (LB) allowing the appeal of the Revenue against the assessee - Goods like cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules for the impugned period – against assessee.
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2012 (4) TMI 382
Confirmation of the demand of duty, interest and equivalent amount of penalty with imposed penalty on the director of the company – clandestine removal - Held that:- Assessee was denied grant of the copies of relied upon documents for upholding the charge against him - the adjudicating authority passed an ex-parte order upheld by first appellate authority without considering their grounds of appeal – though assessee did not have any documents with them when they filed the appeal before the first appellate authority and had proceeded only on the basis of Show Cause Notice and the Order-in-Original the adjudicating authority has erred in confirming the demand without following the principles of natural justice - remanded matter back to adjudicating authority to reconsider it afresh - against revenue
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