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TMI Tax Updates - e-Newsletter
May 22, 2012
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Investment allowance u/s 32A - article or thing, viz., alcohol including rectified spirit and denatured spirit manufactured by the assessee - assessee cannot be denied investment allowance. - HC
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TDS u/s 194H - the discount offered by the assessee to the distributors on payments made by the latter for the SIM cards/recharge coupons which are eventually sold to the subscribers at the listed price is commission and it is subject to TDS u/s 194H. - AT
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Agricultural income Vs. Business income - Sale of palm oil - activity of extracting crude palm oil from palm pericarp(fruit portion excluding the kernel) and also from the kernel - not an agriculture income - HC
Customs
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Continuation of anti-dumping duty on imports of ‘Zinc Oxide’, originating in, or exported from, China PR. - Notification
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Suspension of CHA licence - Regulation 20(2) of the 2004 Regulation - Board's circular dt. 18.4.2010 - period of limitation of 15 days or 30 days - contradiction in circular and regulations
Corporate Law
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Compliance of the provisions of Companies Act, 1956 and the Rules made there under. - Circular
Indian Laws
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White Paper on Black Money.
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Persons carrying on agency business or earning commission income should revise their return for A.Y 2011-12, if original return filed u/s 44AD - Article
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STAMP DUTY -AMENDMENT IN MP- POWER OF ATTORNEY TO AGENTS NOT BEING SPECIFIED RELATIVES,IS A VALID CLASSIFICATION – LEVY OF STAMP DUTY ON MARKET VALUE IS UPHELD BY THE SUPREME COURT. - Article
Service Tax
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Cenvat Credit - Outdoor catering - input services - Rule 2(l) of the CENVAT Credit Rules(CCR), 2004 – statutory obligation under the Factories Act
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Cargo handing service - Movement of coal from mine surface to tip head within the mine area. - Mere loading of coal within the mining area does not amount to Cargo Handling Service
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Refund claim of service tax - Notification No. 09/2009-S.T dated 03.03.2009 - aeven if the services were rendered prior to 03.03.2009 but the recipient has paid the service tax on or after 3.3.2009, he can avail service tax refund as provided for in the Notification.
Central Excise
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Job work - valuation under central excise - Rule 10A(i) or (ii) or Rule 8 of the Valuation Rules will not apply in respect of job worked goods consumed by the principal manufacturer
Case Laws:
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Income Tax
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2012 (5) TMI 294
Search and Seizure - block assessment - authorization u/s 132A - Held that:- action under section 153C of the Act was initiated on the basis of information received by the Additional CIT, Range IV, Kanpur on 22.12.2004 which is not permissible under the law. The right course available with the Revenue if they intends to initiate action on the basis of information received from some person, they could initiate action under section 153A of the Act requiring the assessee to furnish the requisite information, but action under section 153C of the Act is not permissible under the law. Therefore, we are of the considered opinion that action initiated by the Assessing Officer under section 153C of the Act by issuing notice under section 153C read with section 153A of the Act is not sustainable in the eyes of law.
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2012 (5) TMI 287
Reopening of an assessment u/s 147/148 - Depreciation - possession - hire purchase of the machinery - held that:- while for one year it had accepted the transactions as a genuine one, viz., 1998-99, in respect of assessment years 1995-96 to 1997-98, it took a different stand that it is a colourable transaction. On a perusal of the documents produced, we have no hesitation in confirming the order of the Tribunal, both on the question of jurisdiction to reopen the assessment for the assessment year 1995-96 and on the merits of the claim in respect of the three assessment years viz., 1995-96 to 1997-98. - Decided in favor of assessee.
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2012 (5) TMI 286
Business expenditure - payment of commission - payment to relatives - Provisions of Section 40A(2)(b) of the Act. - held that:- Assessment Officer has examined various statements of the brokerage which were furnished by the assessee before him and in the case of investors, the assessee has net shown any payment of brokerage to the investor concerned and it has only shown payment of brokerage to his family members. It has been found by the Assessment Officer that it has been done to divert his income to his family members which would have otherwise become taxable in his own hands. Shri Uttam Chand Jain and Smt. Sunita Jain were having huge brought forward loss. The income was also diverted as against the huge loss. Provisions of Section 40A(2)(b) of the Act has been attracted. - Addition upheld - Decided against the assessee.
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2012 (5) TMI 285
Disallowance on account of non deduction of TDS u/s 40(a)(ia) - loading and unloading charges - sub contractors - Circular No. 715 - Job work - outsourcing - reimbursement - held that:- Except for the observation of the AO that the business of the assessee is continuous, nowhere has the AO proved that the assessee had bound himself in contracts with outsourced third parties. We are in complete agreement with the submissions of the AR that at best the business done by the assessee for whom he hires trucks/lorries/containers would amount to job work because whatever he receives from his customers are paid to the out sourced lorry owners, that too on his own risks and perils and also where the out sourced transporters are not binding the assessee’s customers. - Decided in favor of assessee.
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2012 (5) TMI 284
Garnishee notice - Section 226 (3) - attachment orders - held that:- Having regard to the facts and circumstances of the case, we are of the opinion that it is just and proper to grant stay of the impugned garnishee order, and the subsequent attachment orders pending disposal of the appeal before the CIT(A) subject to condition the petitioner pays 50% of the demanded tax at the rate of Rs.2 crores per month commencing from May 2012 payable by 5 th of every month. The Commissioner of Income Tax (Appeals)-IV is directed to dispose of the appeal as expeditiously as possible preferably within a period of 3 (three) months from today.
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2012 (5) TMI 283
Transfer pricing - Challenge to the order passed by the Dispute Resolution Panel (DRP) u/s 143(3) read with sec. 144C - Most Appropriate Method (MAM) - Resale Price Method (RPM) or Transaction Net Margin Method (TNMM) - Selection of comparable - held that:- assessee has followed the internal CUP method for arriving at ALP for the import of raw material, where as the TPO, in his order, has mentioned that the assessee has adopted the external CUP method. Similarly, for the royalty payment, the assessee has adopted the external cup method and it was a single payment, whereas the TPO observed at page 21 of his order that it is recurring payment. There were many flaws in the TPO's order which demonstrate that the facts of the case have not been properly appreciated by the TPO while making the TP study analysis. - Matter remanded bact. Disallowance of warranty provisions - business of desk tops and lap tops from IBM - held that:- Hon'ble Supreme Court in the case of Rotork Controls India (P.) Ltd., (2009 (5) TMI 16 (SC)) has held that when a product is sold with a warranty provision, it cannot be held that the assessee has no obligation for the said warranty but for making a provision for the said warranty a reliable estimate should be made on the amount of obligation and a scientific method should be used. - Matter remanded back for reconsideration. Revenue or capital expenditure - marketing support agreement - held that:- it is for efficient running of the business and deriving revenues there-from. In such circumstances, we are inclined to hold that the fees paid by the assessee for marketing support services rendered by IBM, is clearly revenue in nature and is allowable as deduction u/s 37 of the Income-tax Act. Taking over the business - discharge of the liability of the predecessor - held that:- held by the Hon'ble Supreme Court in the case T. Veerabhadra Rao, K. Koteswara Rao & Co. (1985 (7) TMI 2 (SC)), the successor of a business steps into the shoes of its predecessor and is liable to meet any claims against the predecessor. - Decided in favor of assessee.
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2012 (5) TMI 282
Deduction u/s 10A - Reduction of expenditure incurred towards communications expenses as well as travelling, boarding and conveyance expenses from the total turnover while computing deductions under Section 10A of the Act. - held that:- no error committed by the Tribunal in following the judgments rendered in the context of Section 80HHC in interpreting Section 10-A when the principle underlying both these provisions is one and the same. Therefore, we do not see any merit in these appeals. The substantial question of law framed is answered in favour of the assessee and against the revenue.
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2012 (5) TMI 281
Investment allowance u/s 32A - Whether article or thing, viz., alcohol including rectified spirit and denatured spirit manufactured by the assessee-company do not come under the ambit of Eleventh Schedule of the I.T.Act, 1961? - held that:- Respectfully following the reasoning in Sangrur Vanaspati Mills and Sraya Industries (2006 (11) TMI 197 (HC)) we hold that the assessee cannot be denied investment allowance. - Decided in favor of assessee.
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2012 (5) TMI 280
TDS u/s 194H - distributors on sale of Prepaid cards - SIM cards - Demand u/s 201(1) and 201(1A) - held that:- The decision rendered by the Hon’ble Delhi High Court in the case of Idea Celular Ltd (2010 (2) TMI 24 (HC)) is directly on the issues agitated before us. Hence, we are inclined to follow the same. In that case, the Hon’ble Delhi High Court held that the transaction between the assessee, a cellular operator and the prepaid market associates (PMAs) appointed by it whereby SIM cards/recharge coupons are ultimately sold to the subscribers through the latter does not amount to ‘sale’ of goods and, therefore, the discount offered by the assessee to the distributors on payments made by the latter for the SIM cards/recharge coupons which are eventually sold to the subscribers at the listed price is commission and it is subject to TDS u/s 194H. - Decided against the assessee. Applicability of provisions of sec. 194J on roaming charges paid by the assessee to other operators - held that:- decision of Skycell (2001 (2) TMI 57 (HC)). - held that:- this issue could be resolved if there is proper understanding of the technical details concerning the functioning of Home circle cellular operators and Outside circle operators. From the arguments of the Ld A.R, we understand that the case of the assessee is that the Home circle cellular operator does not actually provide airtime usage facility to the subscriber, once he moves out of the Home circle to an outside circle. The airtime usage in those Outside circles is actually provided by the operators of concerned outside circles. With regard to the billing, the understanding between the cellular operators is that the charges for the usage in Outside circles shall also be collected by the Home circle cellular operator, who in turn, shall pass it on to the concerned outside circle operator. - matter remanded for reconsideration.
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2012 (5) TMI 279
Deduction u/s 80IB(10) - completion certificate - housing projects - the only contention of the AO for rejecting the claim of appellant for all these six AYs is that there is no completion certificates in respect of above mentioned three housing projects issued by the Corporation - The Municipal Corporation had issued the completion certificate on 18.06.2010, 23.06.2010 and 24.06.2010 in respect of Permission No. 3737/27.03.2001, 299/04.09.1999 and 580/02.11.1999 respectively - The Municipal authority has not pointed out any defect and irregularity in the assessee's application dated 26.11.2007 submitted for issuance of completion certificate of all the said projects - Decided in favor of the assessee
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2012 (5) TMI 278
Minimum Alternate Tax (MAT) - Interest u/s 234C - deferred payment of advance tax - Section 115JB(5) - held that:- Under s. 115JB of the Act, sub-s. (5) clearly states that other provisions of the Act shall apply to every assessee being a company, save as otherwise provided in the said section. In this context, Circular No. 13 of 2001 has also been issued by the CBDT as per which companies covered by the provisions of s. 115JB are liable to pay advance tax and consequently, ss. 234B and 234C of the Act are applicable. Decision in Kwality Biscuits Ltd.(2006 (4) TMI 121 (SC)) in which SC dismissed the appeal against the decision of HC in (1999 (11) TMI 48 (HC)) distinguished. - Decided against the assessee.
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2012 (5) TMI 277
Allegation of transfer of property in the guise of lease agreement - Long term capital gain - held that:- It is stated that the said property is sold subsequently. - However, he has neither mentioned the year in which it is sold and the agreement entered in respect of the said sale. - the documents filed by assessee is not sufficient to accept the contentions of the assessee. The facts narrated by the assessee are not in corroboration with the documents placed by assessee. - Matter need re-verification and therefore remitted back to AO.
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2012 (5) TMI 276
Agricultural income Vs. Business income - Sale of palm oil - activity of extracting crude palm oil from palm pericarp (fruit portion excluding the kernel) and also from the kernel - Rule 7 of the Income-tax Rules, 1961 - mechanical and other process - held that:- activity carried out by the appellant in the extraction of oil from the fruit/ from the kernel is an industrial activity and, therefore, income from such activity is assessable as its "profits and gains of business" under Section 28 of the Income Tax Act. - Decided against the assessee. Double taxation - payment of state tax on agriculture income and central income tax - held that:- eligible relief can be considered only in the writ petition pending and not in these statutory appeals filed by the appellant under Section 260A of the Income Tax Act wherein we have considered the substantial question of law arising from the orders of the Tribunal.
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Customs
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2012 (5) TMI 275
Suspension of CHA licence - Regulation 20(2) of the 2004 Regulation - Board s circular dt. 18.4.2010 - period of limitation of 15 days or 30 days - contradiction in circular and regulations - held that:- This appears to be an internal guideline issued by the Board. - this instruction contained in the circular is not part of the Regulation made by the Board. The statute has authorized the Board to make Regulations and the Regulations so made have statutory force. The instructions issued over and above the Regulations cannot be put on the same footing as statutory regulations nor would it be proper for the Tribunal to grant relief treating the instructions to be statutory Regulations which they are not. As such, when the impugned suspension order has been issued within the time limit of 15 days prescribed under the Regulation, the required post-decisional hearing has also been granted by the Commissioner on 28.10.2011, and necessary order for continuing the order of suspension has been passed on 11.11.2011, it is not legally possible nor it is desirable for the Tribunal to set aside the impugned suspension order. - Decided against CHA.
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2012 (5) TMI 274
Export under DEEC scheme - misdeclaration of goods - held that:- the test reports are very clear and categorical with regard to the grade of the SS used in the manufacture of utensils/ kitchenware that were exported in the past. In the absence of any report contrary to the findings of Metallurgical expert, the bald allegations, that goods exported in the past were not made of AISI 304 Grade are not sustainable. The only ground taken by the department is that the same adjudicating Commissioner has taken a different view in two other cases. As pointed out by the Ld. Advocate, the other two cases were different and in those cases, duty benefits were taken by making duty free imports under the respective advance licences, whereas in the present case, SI have not made import of any goods under the three advance licences listed earlier and since the said licences have expired, the same cannot be used. - Decided in favor of assessee in respect of 17 Shipping Bills. Confiscation and redemption fine - in respect of other shipping bills - held that:- the goods which are not available cannot be ordered to be confiscated and no redemption fine can be imposed. - The appellants are, therefore, liable to penal action for such misdeclaration. The only point in their favour is that the misdeclaration has not led to any misuse of DEEC scheme or duty free import under the impugned advanced licences and there has been no consequent revenue loss. - Taking the same into consideration, while holding that the appellants are liable for penal action, I reduce the penalty from Rs. Two lakhs to Rs. One lakh.
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Corporate Laws
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2012 (5) TMI 288
Section 138 of the Negotiable Instruments Act, - Dishonour of cheque - cheque was drawn by respondent No. 3, Mr. Ravi Gupta in his capacity as a partner of M/s Sunlit Securities - The firm has not been impleaded by the complainant - Held that:- respondent No. 1/complainant has also not been able to indicate from the record that any specific amount was mentioned as having been received from respondent No. 3 (Accused No. 2) for dropping him from the case. cheque in question was issued by the respondent No. 3 (Accused No. 2), who respondent No. 1/complainant has decided not to prosecute, on account of his having received some undisclosed amount from the said respondent, respondent No. 1/complainant now cannot be permitted to continue prosecuting the complaint against the petitioner alone, more so when there was no specific allegation levelled in the complaint against her. complaint filed by respondent No. 1/complainant against the petitioner is not maintainable. petition is allowed
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2012 (5) TMI 273
Allegation of oppressive management - transactions detriment to the shareholders etc. - By an application filed under regulation 46 r/w 44 2nd petitioner-company had sought for impleadment of 15th respondent-another company on the premise that some of the assets of the 1st respondent-company had been transferred in favour of the proposed respondent and therefore, the proposed respondent was a necessary party to resolve the main company petition in a satisfactory manner. - held that:- it proper to set aside the order of the Company Law Board dated 30.09.2011, allow this appeal and allow company application No. 49/2011 filed in Company Petition No. 46/2008 before the Company Law Board, Additional Principal Bench, Chennai.
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Service Tax
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2012 (5) TMI 293
Import of services - liability to discharge Service Tax under the reverse charge mechanism on the appellant for export sale commission paid by them to the foreign agent. - CBE&C has also issued a circular F.No.276/8/2009-CX8A, dt.26.09.2011 and clarified that the Service Tax liability will not arise on the recipient of services prior to 18.4.06. - Decided in favor of assessee.
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2012 (5) TMI 292
Cenvat Credit - Outdoor catering - input services - Rule 2(l) of the CENVAT Credit Rules(CCR), 2004 – Held that:- they had a statutory obligation under the Factories Act to provide canteen facility to their employees. original authority did not have occasion to verify the strength of employees in the respondent's factory as it proceeded on the premise that outdoor catering service was not covered by the definition of 'input service'. Though the appellate authority held the service to be a input service, it did not advert to the statutory obligation, if any, of the respondent under the Finance Act. These are the circumstances which warrant remand of the case to the original authority. appeal and cross-objection are allowed by way of remand
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2012 (5) TMI 291
Whether service tax is leviable on the freight paid by the appellants to truck owners for carriage of tobacco from auction-yard to godowns - assessees cannot be held to have availed GTA service. In this connection, reliance is placed on a series of judgments of this Tribunal viz. Commissioner Vs. Kanaka Durga Agro Oil Products Pvt. Ltd. 2009 (15) S.T.R. 399, Salem Co-operative Sugar Mills (2010 - TMI - 77283 - CESTAT, CHENNAI - Service Tax) decision in favour of appellants
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2012 (5) TMI 290
Cargo handing service - Movement of coal from mine surface to tip head within the mine area. - held that:- Reading of relevant clauses of agreement extracted in show cause notice does not throw light that loaders were let out by appellant with the concurrent obligation of loading of coal. When there was no letting out of loaders, entire activity was to discharge the obligation of loading of coal within the mining area as is observed-aforesaid. Mere loading of coal within the mining area does not amount to Cargo Handling Service as has been held in the case of Sainik Mining & Allied Services Ltd. (2007 (11) TMI 90 (Tri) ) and there is no instruction from Revenue whether that order of Tribunal has been reversed or stayed by any higher court. - Decided in favor of assessee.
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2012 (5) TMI 289
Refund claim of service tax - Notification No. 09/2009-S.T dated 03.03.2009 - appellant is SEZ status holder for generation of electrical energy - held that:- the only requirement for claiming refund is that service tax on the services should have been paid on or after 03.03.2009. It is immaterial when the services had been rendered. In other words, even if the services were rendered prior to 03.03.2009 but the recipient has paid the service tax on or after 3.3.2009, he can avail service tax refund as provided for in the Notification. Therefore, the argument of the department that the service tax refund will be available only for the services rendered on or after 03.03.2009 does not appear to have any legal basis. - Decided in favor of assessee. Services outside SEZ unit - held that:- any service rendered to a SEZ unit in an export and, therefore, the procedure prescribed by the Board in Circular dated 19.01.2010 in respect of exports can be reasonably applied to the case under consideration and there is nothing wrong in the Assistant Collector adopting the same procedure. In any case, it is an internal matter of the department how they should verify the eligibility to the refund claim. In the instant case, the refund sanctioning authority has directed the appellant to produce the C.A certificate and on that basis he has sanctioned the refund. The appellant herein cannot be faulted for following the procedure directed by the refund sanctioning authority. - Decided in favor of assessee.
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Central Excise
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2012 (5) TMI 272
Interest on Delayed refund (rebate claim) under central excise - Section 11B - held hat:- in regard to Central Excise Law, there is specific provision for grant of interest under Section 11BB and there is no reason why the same should not be followed. The matter has also been dealt with at length in the case of Ranbaxy Laboratories Ltd. (2011 (10) TMI 16 (SC)) wherein the Hon ble Supreme Court has categorically ruled that interest has to be paid beyond the delay of 3 months from the date of filing the claim. - Decided in favor of assessee.
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2012 (5) TMI 271
Job work - valuation under central excise - held that:- Rule 10A(i) or (ii) or Rule 8 of the Valuation Rules will not apply in respect of job worked goods consumed by the principal manufacturer and not sold. It was further held that Rule 11 will apply in such cases and Revenue can take recourse to provisions of rule 11 which talks about using reasonable means consistent with the principles and general provisions of the Valuation Rule read with sub-section (1) Section 4 of the Central Excise Act, 1944. Keeping this in mind, the ratio laid down by the hon'ble Supreme Court in the case of Ujagar Prints will squarely apply, that is, to ascertain the assessable value on the cost of raw materials plus processing charges. - Decided in favor of assessee.
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2012 (5) TMI 270
Cenvat credit – stay - demand of interest - wrongful credit - Appellant availed the credit in respect of the capital goods which were sent to job-worker for re-conditioning or modification – Held that:- Appellants had not reversed the credit and the demand is in respect of interest on such credit, as per provisions of Rule 14 of CENVAT Credit Rules if the credit has been taken wrongly the manufacturer is liable for interest. The Appellants only contested the demand of interest on the ground that the same was not utilized, no merit in the contentions of the Appellants hence the Appeal is dismissed. Stay Petition is also dismissed
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2012 (5) TMI 269
Natural justice - stay application – Held that:- appellant sought an adjournment which was considered and the matter was fixed on 28/10/2009 but unfortunately before that date the appellants met with an accident on 18/10/2009 wherein both the legs were fractured and these facts have been communicated to the Commissioner well in advance along with supporting evidence i.e. photographs, medical certificates, etc. and the Commissioner failed to consider the contention of the appellants for adjournment of the case and did not grant any further adjournment in the case. Thereafter, after two months, he passed the adjudication order. If the Commissioner had given an opportunity after two months to the appellants, the appellants could not have pleaded before this bench that no reasonable opportunity was given to the appellants.Therefore, we are of the opinion that principles of natural justice has been violated by the Commissioner while passing the order, matter remanded back to the Commissioner, appeal as well as the stay applications are disposed of
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2012 (5) TMI 268
Waiver of pre-deposit of duty – Held that:- waiver has been made out by the assessees as, sub-clause (iii) in condition No. 86 which is required to be fulfilled in the case of supply of goods required for setting up of mega power project was deleted from Notification No. 21/02-Cus. by Notification No. 49/06-Cus. dated 26-5-2006. We therefore waive pre-deposit and stay recovery of amounts in dispute pending the appeal.
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