RECENT UPDATES IN DIRECT & INDIRECT TAXES AND IN OTHER AREAS OF
PROFESSIONAL INTEREST– 13hJanuary, 2014
CA Gopal Kumar Kedia
Ph.: 9810131451
Email : gopal@gkkedia.com
INCOME TAX
Balkrishna Textile Pvt Ltd Vs ACIT
Income tax – Section 32 - Interest disallowance – Whether the assessee being a company is
entitled for depreciation on the asset owned by its director which is being used for business
purpose – Whether when the assessee has utilized its share capital and reserves in fixed assets
and inventory, it cannot be stated that the loans and advances given as interest free are out of
owned funds of the assessee. - Assessee’s appeal is partly allowed : AHMEDABAD ITAT
Smt Shahinoor A Akbar Lalni Vs ITO
Income Tax - Sections 28, 56 - Whether the compensation received by the assessee
attributable to the use of building premises, licenses & furniture can be considered as Business
Income when the entire risk of the business was transferred by the assessee to the conductor
and the assessee was to receive a minimum amount of Rs. 1 lac per month or 22% of the net
sales whichever was higher. - Assessee's appeal partly allowed: MUMBAI ITAT
ITO Vs Shri Pankaj Vij
Income Tax - Sections 40(a)(ia), 80C - Whether an assessee can engage itself in a business in
the dual capacity of an individual as well as HUF - Whether in case TDS has been deposited
before the date of filing of the return, the disallowance u/s 40(a)(ia) is not sustainable in law Whether in case CIT(A) has granted relief to assessee by considering facts and figures which
were not before the AO, the order of CIT(A) is tenable in law - Whether deduction from capital
account of HUF is allowed in the form of drawings for making household expenditures. Revenue's appeal partly allowed : DELHI ITAT
C T Chacko Vs CIT
Income Tax - Sections 139, 148, 271(1)(c), 275 - deemed concealment of income - Whether in
case an assessee has not filed return of income in pursuance of notice issued u/s 148 for
reopening assessment, it can be assumed that there was a deemed concealment of income Whether penalty u/s 271(1)(c) can be levied in such cases. - Assessee's appeal
dismissed:KERALA HIGH COURT
CIT Vs Bharti Mishra
Income Tax - Sections 54, 54F - capital gains - construction - Whether benefit of exemption u/s
54F can be denied in case assessee has commenced the construction of house property before
the sale of shares. - Revenue's appeal dismissed:DELHI HIGH COURT
CIT Vs Triveni Sheets Glass Works Ltd
Income Tax - Sections 35B, 35D, 37(3B), 80G, 143(3), 154, 260A - Export Market Development
allowance - Whether the provisions for exemption and deduction should be considered liberally
even in case there is no ambiguity - Whether an assessing officer can file an application u/s 154
to rectify a mistake, on its own motion - Whether in order to rectify a mistake in a debatable
question, application u/s 154 can be filed. - Revenue's appeal allowed:ALLAHABAD HIGH
COURT
ITO Vs Bisco Steel Udyog (Pvt) Ltd
Income Tax - Sections 41(1), 69C, 133(6) - suppressed purchase - sales tax penalty - Whether
in case, addition is made u/s 69C for unrecorded expenses, deduction can be simultaneously
allowed on the sum added to income - Whether an addition in income on account of penalty can
be made in excess of the actual amount paid - Whether an addition u/s 41(1) can be warranted
in case the amount stood remitted in the earlier year and not the current year. - Revenue's
appeal partly allowed:KOLKATA ITAT
DCIT Vs Ahuja Platinum Properties Ltd
Income Tax - Section 40 A(2)(a) - Whether provisions of section 40A(2)(a) of the Act can be
invoked where sister concern and the assessee are in the same tax bracket and particularly
when assessee is a loss making company and sister concern is a profit making company Whether before deciding an issue on the basis of previous year order the comparison of facts is
must. - Case remanded:MUMBAI ITAT
Madhusudan Industries Ltd Vs CIT
Income Tax - Section 263 - Whether the CIT(A) is justified in invoking jurisdiction u/s 263 on the
ground that set off of the business loss/unabsorbed depreciation against income under the head
'income from Others Sources' is irregular when the Revenue has been accepting the claim of
the assessee, the income earned by way of interest income as business income and it was not
stated by the CIT as to how the stand taken by the Revenue for earlier years is not correct. Assessee's appeal allowed:AHMEDABAD ITAT
CIT Vs Dr K P Singh
Income Tax - Sections 158BG, 260A - search - Whether while granting administrative approval
u/s 158BG, CIT is obliged to give a hearing opportunity to assessee - Whether in case an
assessee follows cash basis of accounting, interest income must be taken on receipt basis only.
- Revenue's appeal partly allowed :ALLAHABAD HIGH COURT
CIT Vs Sri Sidh Nath Goel
Income Tax - Sections 132, 139 (1), 143(3), 260A, 271(1)(c) - search - concealment - Whether
in case, an assessee admits certain income during the course of search and seizure
proceedings, the penalty for concealment can be levied on such income admitted. - Revenue's
appeal dismissed :ALLAHABAD HIGH COURT
CIT Vs Fertilizer Traders
Income Tax - Sections 132 154, 158 BC, 254 (1), 260A - Search - peak credit - undisclosed
income - Whether in block assessment, computation of undisclosed income could be made only
on the basis of seized material and matters seized during search - Whether in case credits
appear not in the same account but in the accounts of different persons, genuineness of all the
person can be disbelieved - Whether in that case, assessee will be entitled to set off and a
determination of the peak credit after arranging all the credits in the chronological order. Revenue's appeal dismissed :ALLAHABAD HIGH COURT
CIT Vs Mrs Sairunnisha
Wealth Tax Act - Section 16(3), CBDT Instruction No.2/2005 - Whether in case, the tax effect
involved in an appeal preferred before the appellate authority is less than the presribed limit,
such an appeal is not maintainable. - Revenue's appeal dismissed :JHARKHAND HIGH
COURT
Infrastructure Leasing & Financial Services Ltd Vs Dy.CIT
Income Tax Act, 1961 - Sections 30, 37 & 43D - lease equalization - depreciation - double
deduction - Whether while allowing deduction on account of lease equalization charges for the
purpose of computing total income under the Income Tax Act, the difference between the
annual lease charge of the leased assets and depreciation allowed on the said leased asset
under the Income Tax Act should be taken into consideration and not the difference between
the annual lease charge and depreciation. - Case remanded:MUMBAI ITAT
Maharashtra Housing & Area Development Authority Vs Addl.DIT
Income Tax - Section 226(3) - Whether Revenue can recover the entire outstanding tax from
bank account of the assessee by taking a coercive action u/s 226(3) when the assessee was
not afforded a minimum reasonable time to take remedial steps under the law against the
impugned order of the CIT(A). - Assessee’s Stay Application partly allowed:MUMBAI ITAT
DIT Vs National Petroleum Constructions Company
Income Tax - Sections 147, 148 - Special Leave Petition - Whether an assessment can be
reopened u/s 147, in view of a subsequent pronouncement by a Court - Whether condonation of
delay can be granted even if there were no cogent reasons for delay. - Revenue's appeal
dismissed:UTTARAKHAND HIGH COURT
CIT Vs The Nainital Bank Ltd
Income Tax - Sections 37, 43B(f) - Whether payment made as an employer in lieu of any leave
to the credit of its employees can be allowed as revenue expenditure - Whether such
expenditure is certified as an expenditure not for personal purpose. - Revenue's appeal
dismissed: UTTARAKHAND HIGH COURT
CIT Vs Tata Yodogawa Ltd
Income Tax - Sections 35AB, 143(1)(a), 195 - Whether prima facie adjustment can be made
while processing the return u/s 143(1)(a) in respect of income tax due on technical knowhow
fees paid, even in case the said tax paid by assessee is refunded. - Revenue's appeal
dismissed: JHARKHAND HIGH COURT
CIT Vs Sri D S Manjunath
Income Tax - Sections 158BC, 158BD - search - warrant - Prohibitory order - Whether in case
after seizure of material it is found that there is certain undisclosed income of another person,
then u/s 158BD authorities can proceed against such person - Whether in absence of a search
warrant in the name of assessee, Revenue can pass a Block Assessment Order u/s 158BC
read with Section 158BD in case of the materials seized from the assessee relates to him. Revenue's appeal dismissed:KARNATAKA HIGH COURT
CIT Vs Kirloskar Computer Services Ltd
Income Tax - Sections 36(1)(iii), 37, 260A - license fee - bandwidth charges - Whether interest
paid on loan borrowed for the purpose of purchase of plant and machinery is to be deducted u/s
36(1)(iii) - Whether in case of a new project, which is not a part of the existing project or a
business carried on by the assessee, when the sum spent results in advantage of enduring
benefit it can be allowed as a revenue expenditure. - Revenue's appeal
dismissed:KARNATAKA HIGH COURT
Wellness N Solutions (India) Pvt Ltd Vs ITO
Income Tax - Sections 28, 43B, 56, 139 - Whether rental income can be considered as business
income when this was not a case of simple letting out of a premises but the assessee had
developed and prepared the premises as a fitness centre/gymnasium by installing the all
requisite equipments, machines and other facilities - Whether disallowance of Municipal taxes
by invoking section 43B is justified when the amount has been paid on or before the due date of
filing the return of income u/s 139.- Assessee's appeal allowed:MUMBAI ITAT
Vodafone Limited Vs UoI
Income Tax - Writ - Sections 80IB, 143(3), 246A, 254, 263 - natural justice - MAT - Whether the
availability of an alternative remedy would by itself bar the exercise of writ jurisdiction - Whether
non-consideration of assessee's response to the notice by making it impossible to assessee to
file its reply before the AO would cause prejudice to the assessee - Whether in case an AO has
called upon the petitioner to show cause why its claim for deduction should not be disallowed, a
reasonable opportunity of filing its reply should be made available to the noticee - Whether
granting of an opportunity to respond to the show cause notice in less then 24 hours is a flaw in
the decision making process, which is amenable to judicial review. - Case remanded: BOMBAY
HIGH COURT
UCO Bank Vs CIT
Income Tax - Sections 43D, 145, 260A - Interest - Sticky Loans - Whether interest on loans and
advances, of which recovery has become extremely doubtful, and which is written off for all
practical purposes, but recorded separately, would come within the purview of chargeable
interest - Whether non-operational sticky loans in respect of which mercantile actual of interest
was shown in the suspense account, would in law, be payable on mercantile accrual basis. Assessee's appeal allowed: CALCUTTA HIGH COURT
Ashwani Dhingra Vs Addl.CIT
Income tax - Sections 139(1), 142(1), 140A, 148, 234A, 234B, 234C - Land Acquisition Act Sec 23 - Whether when the assessee receives interest on additional compensation in lieu of his
land acquired by the State after the Supreme Court decision, interest is to be charged
retrospectively - Whether interest under Ss 234A, B & C is compensatory in nature. Assessee's appeal allowed: ALLAHABAD HIGH COURT
Venture Metal Products (P) Ltd Vs DCIT
Income Tax - Sections 10B, 40(a)(ia), 43B, 143(2), 143(3), 206, rule 46A - Whether permission
to submit additional evidence can be granted in every case under rule 46A - Whether in case an
assessee had availed sufficient opportunities in the course of 'regular' assessment, it can be
concluded that material prejudice has been caused to its interest - Whether it is necessary in
each and every case that violation of principles of natural justice entitle an assessee for relief. Assessee's appeal dismissed: CHENNAI ITAT
IRIS Smart Card Pvt Ltd Vs CIT
Income Tax - Sections 41(1), 115JB(2) & 263 - Whether section 263 can be invoked when there
are two views possible, one of the plausible opinions taken by the AO - Whether the amount
received by the Assessee company as waiver of interest and principal was to be considered as
income u/s 41(1) when Assessee has not got any deduction as a trading liability in any of the
earlier years - Whether provisions of section 115JB are attracted when carried forward losses or
depreciation is more than the profit earned during the year. - Assessee’s appeal allowed:
HYDERABAD ITAT
ACIT Vs Mamta Machinery Pvt Ltd
Income Tax - Sections 80HHC, 154 - Whether Erection and Installation charges can be treated
as part of the business profits for the purpose of computing the income derived from export by
virtue of the provisions of section 80HHC(3) - Whether net interest should have been reduced
from the income of the assessee while computing deduction u/s.80HHC. - Revenue’s appeal
dismissed : AHMEDABAD ITAT
D C Rastogi Vs CIT
Income Tax - Section 68 - unexplained income - Whether any amount other than the one found
credited in the account/books of the assessee could be estimated and charged to tax u/s 68 Whether in case, the profits reported by assessee are not accepted on the basis of the
supporting accounts, department can process such profits by estimation after rejecting the
books. - Assessee's appeal allowed : DELHI HIGH COURT
Indo Scotish Brand Pvt Ltd Vs DCIT
Income Tax - commission - Whether huge amount of commission paid to an individual for
boosting sales of a corporate entity can be allowed as revenue expenditure - Whether such a
payment must results in doubts. - Assessee's appeal dismissed : KERALA HIGH COURT
Modern Farm Services Vs CIT
Income Tax - Sections 142(1), 143(2), 143(3), 144A, 147, 148, 282 - Post Warranty Services Whether confirmation of addition on account of reserves in the Sundry World Bank Account is
legally sustainable when the same have been duly accounted for under the head 'liabilities' in
the regular books of account of the assessee - Whether AO is legally justified in making an
addition on account of undisclosed income on octroi estamates on mere presumption and
surmises without there being any independent evidence on record to corroborate the same. Assessee's appeal dismissed : PUNJAB AND HARYANA HIGH COURT
Gujarat State Plastic Manufacturers Association Vs DDIT (Exemption)
Income Tax - Sections 143(1), 143(2), 271(1)(c), 274, 282 - Whether there is a general principle
that a party prevented from doing an act for some reasons beyond his control can do so at the
first subsequent opportunity - Whether the said principle is based on the doctrine that law does
not compel performance of an impossibility - Whether in case the last date for issue of a
statutory notice falls on a public holiday, it can automatically shift to next working day - Whether
in such a case issue of notice can be considered as time barred.- Assessee's appeal dismissed
: GUJARAT HIGH COURT
Kishore Trading Co Vs ITO
Income Tax - Sections 143 (1)(a), 143 (2), 234-B, 260A, 271 (1) (c) - Whether when Tribunal
has not considered the reasons properly and observed that the case is not fit for condonation of
delay, it can be presumed that Tribunal has not excercised powers judiciously - Whether such
an order of the fact finding authority can be held legal. - Assessee's appeal allowed :
ALLAHABAD HIGH COURT
ACIT Vs Avinashi Industries
Income tax – Section 80IC – Whether the activity of blending and mixing of reactive dyes can be
considered to be manufacturing or production so as to entitle the assessee to deduction as per
the provisions of u/s 80IC when the said process is considered as manufacturing under the
excise regulations.- Revenue’s appeal allowed : AHMEDABAD ITAT
SERVICE TAX
3I Infotech Ltd Vs CST
ST - from the teaming agreement it is clear that the agreement is made between the applicant
and the foreign service provider - therefore, it cannot be said that the foreign service provider
has provided service to Dubai office and not to the present applicant in India - in view of
provisions of s.66A of FA, 1994, applicants are liable to pay ST in r/o services received from
foreign service provider on reverse charge mechanism -ratio of decision in Paul Merchants is
not applicable as in that case both, service provider and recipient are located outside India duplication of SCN prima facie evident - in the totality of facts, pre-deposit ordered of Rs. 1
Crore: CESTAT - Pre-deposit ordered : MUMBAI CESTAT
CCE & C Vs Mall Enterprises
ST - Respondents providing "Industrial Construction Service" and claiming the benefit of Notfn.
15/2004-ST and not taking into consideration value of free supply material by principal Demand set aside by Commissioner(A) - Revenue in appeal. Held: Issue is now settled by the
LB decision of Tribunal in Bhayana Builders (P) Ltd. holding that value of free supplies by
service recipient does not comprise the gross amount charged under notfn. 15/2004-ST
including the Explanation thereto as introduced by notf. 4/2005-ST - no infirmity in order Revenue appeal dismissed: CESTAT - Appeal dismissed: MUMBAI CESTAT
Meher Containers Terminals Pvt Ltd Vs CST
ST - Appellant taking registration in 2003 but not paying Service tax and not filing returns - in
December 2005 they started paying ST for the period 2002 onwards on suo motu basis with
interest - later from August 2006, ST paid on due dates - imposition of penalties u/s 76 & 77
justified - penalty u/s 78 imposable to the extent there has been a default in paying the ST Appeal disposed of: CESTAT - Appeal disposed of:MUMBAI CESTAT
CCE Vs Hi-Tech Induction Pvt Ltd
ST - respondents are undertaking work of Heat Treatment on crank shafts supplied by various
customers - after heat treatment the crank shafts were returned back to the principal
manufacturers who cleared the same ultimately on payment of appropriate CE duty - certificates
issued to the said effect by principal manufacturers - activity undertaken by respondent amounts
to manufacture and does not fall under the category of "Business Auxiliary Service" - no infirmity
in order of lower authority - Revenue appeal dismissed: CESTAT - Appeal dismissed :MUMBAI
CESTAT
R S Earth Movers Pvt Ltd Vs CCE
ST - appellant entered into contract with Western Coalfields Ltd. for providing service of removal
of all types of material using equipment and machinery - from the copy of the contract it is
evident that the same is for overburden removal and there is no activity of mining or related to
mining of minerals - no infirmity in order - demand of ST under the category of “Site Formation
and Clearance etc." proper, hence upheld along with interest: CESTAT
Penalty - as the appellant is a limited company formed by Ex-servicemen, disabled Exservicemen and war widows and allowed to work into area specified by government and the fact
that they were corresponding with Western Coalfields Ltd. in the matter of payment of Service
Tax, provisions of section 80 are attracted - imposition of penalties u/ss 76, 77 & 78 not
sustainable - penalties set aside: CESTAT - Appeals disposed:MUMBAI CESTAT
Axis Bank Ltd Vs CST
ST - CENVAT - Rule 2(l) of CCR, 2004 - By no stretch of imagination can events conducted by
Event Management Company and buying & supplying movie tickets to woo customers be
considered as promotion of business activities of a bank - prima facie not an Input Service:
CESTAT
CENVAT - Rule 2(l) of CCR, 2004 - Insurance Auxiliary Service - Group insurance policy is a
part and parcel of the salary and perks given to employees and, therefore, would qualify as an
eligible Input Service: CESTAT
CENVAT - Rule 2(l) of CCR, 2004 - Real Estate Agency Service - even though appellant claims
that it is towards part of the employees perks, there can be a dispute whether it is a service
activity or a welfare activity: CESTAT
As the CENVAT credit involved in respect of Real Estate Agent Service & Event Management
Service is Rs.1.25 crores and the appellant has already reversed an amount of Rs.1.62 crores,
same is sufficient for hearing of the appeal - pre-deposit of the balance amount of dues
adjudged is waived and stay granted: CESTAT - Stay granted:MUMBAI CESTAT
CST Vs J K Investors (Bombay) Ltd
ST - respondents having "Selling Agency Agreement" with M/s Raymond Ltd. and as a selling
agent respondent has a number of dealers for sale of goods of M/s Raymond Ltd. - they are
responsible for recovery of sums against the goods despatched from the factory to the dealers
and also catering for the marketing of goods - Revenue demanding ST on the ground that the
activity is covered under the service of "C&F Agent" - demand dropped by adjudicating authority
and Revenue preferring appeal. Held : since the respondent had not undertaken the activity of
warehousing the goods or receiving the goods from the factories of M/s Raymond Ltd. they
cannot be termed as "C&F Agent" - no infirmity in order of adjudicating authority - Revenue
appeal dismissed: CESTAT - Appeal dismissed : MUMBAI CESTAT
CC, CE & ST Vs HCL Technologies Ltd
ST - Rule 5 of CCR, 2004 - Refund of credit lying unutilized - even if appellant was not eligible
for refund under Notification No. 9/2009 dated 3.3.2009, the appellants were certainly eligible for
refund under Section 11B of the Act - issue has attained finality in view of decision in Tata
Consultancy Services Ltd. - no infirmity in order-in-appeal - Revenue appeal rejected: CESTAT Appeal rejected:DELHI CESTAT
Bhagwati Security Services Vs UoI
Service Tax – Service recipient is required to reimburse the Service Tax to the service provider:
service tax is statutory liability. It is a tax which is required to be collected by the service
provider from the person to whom service is provided, and thereafter to be deposited with
government treasury within the prescribed time. Thus essentially the statute is being imposing
the tax upon the person to whom service is being provided, and the service provider is merely a
collecting agency. The respondent no.2 is directed to make reimbursement of service tax to the
petitioner. - Petition Allowed:ALLAHABAD HIGH COURT
Loomtex Exports Vs CCE & ST
Service Tax - Business Auxiliary Service - services of agents overseas engaged on commission
basis for textile mark ups - tax demand on commission earned confirmed under ‘BAS' but
penalty waived in adjudication - original order upheld on merit and limitation by Commissioner
(Appeals) in a common order addressing party appeal in respect of tax and departmental appeal
in respect of penalty - further agitated in Tribunal by party, who ordered pre deposit in the
impugned interim order, which is agitated in the instant petition.
Held: Although the Notification relied on by the assessee, and the Foreign Trade Policy is a
matter for consideration in the appeal filed before the Tribunal, considering the prima facie plea
of the assessee that the entire exercise would be only revenue neutral - civil miscellaneous
appeal allowed; order of the Tribunal is set aside; and the deposit of Rs.9 lakhs as ordered by
the Tribunal, stands dispensed with. - Petition allowed:MADRAS HIGH COURT
SPIC Ltd Vs CST
Service Tax - Stay/Dispensation of pre-deposit - CENVAT Credit availed on service tax paid in
relation to sale of equity shares - Whether the input services namely, sale of equity shares
would be applicable for the output service of the consulting engineering service, erection,
commissioning and installation service, maintenance and repair service etc - The final product
of the applicant namely fertilizer is exempted from the central excise duty - Prima facie, sale of
equity shares has no nexus with the output service - Pre-deposit of Rs 50 lakhs ordered. - Predeposit ordered: CHENNAI CESTAT
Vamona Developers Pvt Ltd Vs CC, CE & ST
ST - Appellant registered as provider of taxable service of ‘Renting of Immovable Property' - in
construction of the mall, the appellant received services from various service providers in
respect of construction including industrial or commercial construction activity - tax paid by such
service providers was availed as CENVAT credit - Revenue denying credit on the ground that
Mall is an immovable property and further that the credit availed is in respect of Service Tax
paid at Mumbai - in the case of Navaratna S.G.Highway Prop. Pvt. Ltd. Tribunal has held that
credit is available - adjudicating authority denying credit on the ground that appeal against the
Tribunal decision is pending before the High Court - as there is no order passed by the High
Court staying or setting aside the Tribunal decision, prima facie applicant has made out a case
for total waiver of dues - Stay granted: CESTAT - Stay petition allowed: MUMBAI CESTAT
Datamatics Softworld P Ltd Vs CST
ST - Refund - When service is not provided, question of payment of service tax does not arise question of unjust enrichment too does not arise - adjudicating authority directed to refund
amount within 30 days - Appeal allowed with consequential relief: CESTAT - Appeal allowed :
MUMBAI CESTAT
EXL Service. Com (I) Pvt Ltd Vs CCE & ST
CENVAT - Rule 2(l) of CCR, 2004 - Security services provided at the Guest House of the
appellant located at places other than the registered premises is not an Input Service: CESTAT
Rule 2(l) of CCR, 2004 - CENVAT credit is taken on invoices under "Facilities Management"
services issued by M/s. C.B. Richards Ellis - service agreement nowhere mentions the "Real
Estate Agents" service whereas the invoices in question referred to "Real Estate Agents"
service - These invoices cannot be connected to the service agreement - credit rightly denied:
CESTAT
Rule 2(l) of CCR, 2004 - Services of "movers and packers" in relation to Guest House and
moving of guard hut - in the absence of any evidence to the fact that shifting of goods from the
guest house or guard hut from one premises to another was in any way related to rendering of
the output services, credit rightly denied: CESTAT - Appeal rejected : DELHI CESTAT
Atuleena Chemicals (India) Ltd Vs CCE
ST - abatement sought by appellant in respect of expenses made on purchase of
petrol/kerosene, telephone bills, electricity bills, transportation charges and miscellaneous
expenses such as photocopy, octroi etc. - whether reimbursements are to be taken into
consideration while arriving at the assessable value for the purpose of service tax - issue is now
settled by Larger Bench in case of Sri Bhagavathy Traders wherein it is held that the tax has to
be paid on the gross amount received - order of lower authority demanding tax on
reimbursements upheld along with interest: CESTAT
Penalty - since prior to LB decision, there were different views on the issue, penalty imposed is
set aside - Order of Commr(A) modified to the said extent: CESTAT - Appeals partly allowed :
MUMBAI CESTAT
National Insurance Academy Vs CCE
ST - Commercial Training or Coaching - applicant conducting Management Courses - the MBA
course programme is not recognized by any University whereas the applicant was
misrepresenting otherwise - clear case of suppression - Pre-deposit ordered of 50% of
confirmed demand: CESTAT - Pre-deposit ordered : MUMBAI CESTAT
HDFC Bank Ltd Vs CST
ST - Tax savings bonds have been issued as part of the borrowing programme of the
Government from the public - there is no doubt that the tax savings bonds issued by the RBI
and sold by the appellant bank is a Government Security - Logic contained in Board Circular
dated 10/08/2010 clarifying that there is no ST liability on underwriting fee/commission received
by dealers for dealing in Govt. securities would apply in respect of brokerage received for sale
of tax savings bonds - ST demand under Banking & Financial Services not sustainable - appeal
allowed: CESTAT - Appeal allowed : MUMBAI CESTAT
CCE Vs V B Patil
ST - Value of goods and materials supplied by the service recipient to the provider of the
taxable construction service are not to be taken into consideration for the purpose of arriving at
gross value for payment of service tax - issue settled by LB decision in Bhayana Builders (P)
Ltd. vs. CST, Delhi - no infirmity in order of Commissioner(A) - Revenue appeal dismissed:
CESTAT- Appeal dismissed : MUMBAI CESTAT
Total Oil India Ltd Vs CST
ST - Goods manufactured were sent outside India for conducting the test - test report was
received by their parent company in France - department seeking Service Tax under reverse
charge mechanism - in view of the fact that products were tested outside and the report was
received by HO in France, appellant prima facie has a strong case in favour - Pre-deposit
waived of adjudged dues - Stay granted: CESTAT - Stay petition allowed : MUMBAI CESTAT
CENTRAL EXCISE
CCE Vs Sandvik Asia Ltd
S. 11B of CEA, 1944 - Refund - Amount deposited at the time of consideration of Stay
application before Commissioner (Appeals) is not to be considered as ‘duty' - provisions of
s.11B of the CEA, 1944 are not applicable - bar of unjust enrichment is not applicable Revenue appeal dismissed: CESTAT - Appeal dismissed : MUMBAI CESTAT
Interfit India Ltd Vs CCE
Central Excise - Stay/Dispensation of pre-deposit - Valuation of goods cleared to own unit Demand of duty on the ground that the CAS 4 was not prepared in accordance with statutory
format - Department demanded duty based on the opinion of the Deputy Director (Cost) who is
also an authority on the issue - Limitation aspect would be looked into at the time of final
hearing - No prima facie case for waiver of pre-deposit - Pre-deposit of Rs 10 lakhs ordered. Pre-deposit ordered : CHENNAI CESTAT
Rucha Engineers P Ltd Vs CCE
CENVAT - GTA Service – it is immaterial who has paid the Service Tax – even if the
Transporter has paid ST, appellant is eligible to take CENVAT credit: CESTAT - Appeal
allowed:MUMBAI CESTAT
Videocon International Ltd Vs CCE
CE - rule 173C of CER, 1944 - Refund - Subsequent reduction in prices by passing on higher
discounts to the customers after clearance of the goods cannot alter the excise duty liability refund claim rejected - Revenue appeals allowed: CESTAT
Refund - Unjust enrichment - It is a settled position in law that subsequent issuance of credit
notes passing on relief of duty burden would not help in overcoming the bar of unjust
enrichment - It is an admitted position that the appellant allowed higher discounts in view of the
cut throat competition in the colour TV market. If there was cut throat competition due to which
the prices had to be reduced, how can it be known in advance so as to be communicated to the
buyers in advance? The very fact that the reduction in price was passed on to the buyers
subsequent to the sale through credit notes itself is a clear pointer to the fact such price
reduction was not known in advance: CESTAT - Revenue appeal allowed/Assessee appeal
rejected:MUMBAI CESTAT
CCE & ST Vs Madhusudhan Industries Ltd
Central Excise - Duty exemption on fatty acids, soap stock and acid oil emerging as byproducts
in milling and solvent extraction in the manufacture of vanaspati & refined edible oil - clearances
under Notification No. 115/75 dtd 30.4.1975 for use in the manufacture of soap at the same
place - upheld in denovo adjudication proceedings - agitated by Revenue seeking denial of
exemption on grounds that the impugned goods were final products, that the exemption applied
only to final products emerging from solvent extraction and not by products, that the mill was
closed during a portion of disputed period and that functionality of the mill was essential for
availing exemption, if admissible.
Held: undisputed fact that the respondent herein is the manufacturer and is manufacturing
vanaspati and refined edible oil in "a composite mill" and under takes "oil milling and solvent
extraction" in their factory prior to refining - Covered in the schedule under the cited notification,
which does not specify the requirement of the final products being related to the industry which
are covered in the schedule - does not indicate that the assessee needs to continuously
manufacture the goods to avail the benefit of exemption - Revenue's appeal devoid of merits
and rejected. - Appeal rejected:AHMEDABAD CESTAT
CCE Vs Gopi Synthetics Pvt Ltd
Central Excise - Clandestine clearance of man made fibres (MMF) - Duty demand, confiscation
of seizure, redemption fine and penalties imposed in adjudication - set aside by appellate
Commissioner and agitated by Revenue on grounds that (a) Lot numbers mentioned on the
kachcha chits when compared with the lot numbers recorded in their Lot Register, were found to
be totally different, (b) it is not understood what investigation could be conducted from buyer
stated to be a dummy firm (c) acceptability of retracted statements contrary to facts, (d)
relevance and sanctity of the kachcha slips recovered, corroborated with circumstantial
evidence
Held: (a) the department itself believes that all fabrics received in the factory are first entered in
kachcha chits and thereafter entered in the lot register, therefore, physical stock verification of
entire stock was required to be carried out, which was not done, hence not made out a case
beyond doubt that there was shortage of particular MMF/CF and certain quantity of these fabrics
was in excess - (b) onus to prove clearance of fabrics by the respondents to the buyers rests on
the department and for this purpose all buyers to have been investigated without restricting it to
dummy firm - (c) Sec 37C inapplicable to the case, procedures are of secondary importance
and insignificant, while establishing clandestine clearance is of primary importance - (d)
Revenue aims to corroborate loose slips with statements recorded and worksheets based on
the slips - cannot be treated as independent evidence - receipt of the fabrics at the buyers end
is an important evidence to corroborate the evidence in the form of loose slips - Clandestine
clearances not proven conclusively beyond doubt - Revenue appeal dismissed.
Strictures - there is some sort of settling of personal vendetta amongst the officers of the
department as there is less discussion in the departmental appeal about the merit, and mere
comments on the language used by the Commissioner (Appeals) in the findings and
observations - investigators went beyond the jurisdiction or the purpose for which they had
entered the factory premises - while the officers took out their part of anger on each other in this
manner, it is the assessee who has to run from pillar to post to save itself from the searches,
seizures and proceedings before the departmental authorities as well as Courts of law. - Appeal
dismissed:AHMEDABAD CESTAT
LSM Exports Vs CCE
CE - Against order of CESTAT appellant filing appeal on the ground that they were denied right
of cross-examination of the departmental officers - This aspect has been examined by the
Tribunal and it has been highlighted and held that the case of the Revenue was based upon
records and not on statement of any investigating officer; that the appellant was responsible and
should have accounted for the goods imported duty free by them - plea rejected: High Court
CE - Appeal - Conclusions of fact can be challenged in appeal on the ground that the findings
recorded by the Tribunal are perverse or based upon no material or evidence - appellant has
not been able to point out any of these requirements, hence appeal dismissed: High Court Appeal dismissed:DELHI HIGH COURT
Radiant Indus Chem Pvt Ltd Vs CCE
S. 35 of CEA, 1944 - Commissioner(A) dismissing appeal on ground of non-submission of COD
application – as last date for filing appeal was Saturday, appeal filed on Monday, the next
working day – in such a circumstance there is no delay – however, matter remanded for scrutiny
and verification – in case there is delay, applicant is to be allowed to file proper application for
COD: CESTAT - Stay petition disposed:MUMBAI CESTAT
Acer India Pvt Ltd Vs CCE
Central Excise – Stay/Dispensation of pre deposit - Cenvat credit – input service distributor
transferred credit under Rules 2(m) and 7 of Cenvat Credit Rules, 2004 – partly denied on the
ground that a portion of the service was used in trading activity; that input services had no
nexus with manufacturing activity; and partly denied on the ground that the ISD invoice did not
contain all particulars mandated by Rule 4A - No merit in applicant's contentions in respect of
credit attributable to trading activity – defects in credit documents are curable, need examination
at length – argument regarding nexus with manufacturing covered by Ultratech ruling – no need
to call for any pre-deposit on this aspect - appellant to make a pre-deposit of Rs.1.7 crores
within four weeks and subject to such pre-deposit, the balance adjudged dues shall remain
waived in respect of both the appeals for admission of appeal and there shall be stay of
collection of such dues till the disposal of the appeal. - Pre deposit ordered:CHENNAI CESTAT
Cadbury India Ltd Vs CCE
Central Excise – CENVAT credit – Service tax paid on telephone Service and Courier services
availed as input service under the Cenvat Credit Rules 2004 allowed in adjudication, reviewed
by department and agitated before Commissioner(Appeals) who allowed the departmental
appeal, culminating in the instant appeal.
Held: Matter is no more res integra – Apex Court ruling in Maruti Suzuki case and Bombay High
Court ruling in Ultra Cement case, and clarification in CBEC's Master Circular applies to instant
case - input service credit is available on telephone services utilized for business purpose –
Tribunal rulings in Apar Industries, Cadila Healthcare and Universal Cables apply - as per scope
prescribed therein, input service credit is available in courier service – Rule 2(l) of the CENVAT
Credit Rules, 2004.- Appeal allowed:DELHI CESTAT
CCE & ST Vs Lumino Industries Ltd
Central Excise – CENVAT credit – input services credit under rule 2(l) of the Cenvat Credit
Rules 2004 – demand for recovery of credit of tax paid on outward transportation under ‘GTA'
confirmed in adjudication and set aside by Tribunal, agitated by Revenue herein.
Held: Views taken by the Karnataka High Court in the case of ABB Limited do not appear
acceptable - no reasons ascertainable for the purpose of proposition that outward transportation
is an input service - unable to see how can it be said from the restrictive part of the definition
that “the services received or rendered by the manufacturer from the place of removal till it
reaches its destination falls within the definition of input service” - If the definition provided in
Rule 2(l)(ii) is read as a whole, it would appear that outward transportation charges or taxes
paid in regard thereto is claimable only with regard to those transports which were made from
one place of removal to another place of removal - Considering that the Tribunal has merely
disposed of the matter following the judgment in the case of ABB Limited, the order under
challenge is set aside; and the matter is remanded to the Tribunal for re-hearing on merits. Matter remanded : CALCUTTA HIGH COURT
India Steel Works Ltd Vs UoI
Central Excise Act, 1944 - Writ - Sections 11, 35C(2A), 35F - Income Tax Act, 1961 - Section
254(2C) - Article 226 of the Constitution of India - Whether Tribunal can extend stay
proceedings beyond 6 month period - Whether rebate payable by the Department can be
adjusted against dues regarding tax amount - Whether such adjustment is possible with regard
to penalty amount also. - Assessee's appeal allowed :BOMBAY HIGH COURT
Dhananjay Indl Engineers P Ltd Vs CCE
CENVAT - Appellant availing services of Renting of Immovable property - CENVAT credit
availed of ST paid on Renting of Immovable Property - Address of property not entered in
Registration Certificate – whether premises is required to be entered in the RC or not can be
considered at the time of final hearing – prima facie Stay can be granted: CESTAT - Stay
petition allowed : MUMBAI CESTAT
Sunbell Alloys Co of India Ltd Vs CCE & C
CENVAT - Appellants are job workers carrying out manufacturing operations on behalf of the
principal & paying duty - Credit of Tax paid on Services received cannot be distributed as an
ISD by principal manufacturer and availed by job workers - CENVAT availed by job workers
incorrect in law - appeals dismissed: CESTAT
Rule 7 of CCR, 2004 - Rule 7 deals with the manner of distribution, which specifically states that
the input service distributor may distribute CENVAT Credit of the service tax paid on the input
service to its manufacturing units . The job-workers' factory is not the manufacturing unit of M/s.
Merck Specialties but they are independent legal entities by themselves and, therefore, the
question of distribution of credit by M/s. Merck Specialties ltd. to the job-workers does not satisfy
the condition that the credit is distributed to its manufacturing units. It is a settled position of law
that job-workers who actually undertake the manufacturing process is the ‘manufacturer' of
goods and not the supplier of raw materials: CESTAT
Meaning of "its manufacturing units" in Rule 7 of CCR, 2004 - the expression used is "its
manufacturing unit" - The said expression would mean that the manufacturing unit of the input
service distributor and not that of the job-worker' and, therefore, the contention of the appellants
that they are eligible for the input service credit distributed by M/s. Merck Specialties Ltd. is not
in accordance with the provisions of input service distribution scheme envisaged under CCR,
2004: CESTAT
Rule 2(m) of CCR, 2004 - As per Rule 2(m) of the CCR, 2004 ‘input service distributor' means
an office of the manufacturer or producer of output service. In this case, the distributor is M/s.
Merck Specialties ltd. whereas the manufacturers are the appellants. Since these are separate
legal entities, office of M/s. Merck cannot be considered as an office of the manufacturer and
hence Merck cannot be considered as an ‘input service distributor' as defined under Rule 2(m)
of the CCR, 2004: CESTAT.
Budget speech of FM - it is a settled position of law that law has to be interpreted as it is
expressly worded; the Finance Minister's speech and the intentions are not relevant for
interpreting the law so long as the wording of the law are very clear: CESTAT
Limitation & penalty - fact that the appellants are independent job-workers and the transactions
were on a principal-to-principal basis was not disclosed to the department. Thus, there is a
deliberate mis-declaration on the part of M/s. Merck Specialties Ltd. in stating that the units to
which they have distributed the credit are their own manufacturing units whereas the facts were
otherwise - Extended period of limitation available - Penalty, therefore, imposable u/s 11AC of
the CEA, 1944: CESTAT :MUMBAI CESTAT
Fertilizer Corporation Of India Ltd Vs UoI
CX - Condonation of Delay - Delay of 170 days in filing appeal before the CESTAT - When the
Petitioner has been declared a sick company and proceedings have been initiated for winding
up and was entangled in litigation and other consequential proceedings, they cannot be
expected to take prompt steps for filing the appeal - petitioner applying to the High Power
Committee for COD clearance and only after obtaining clearance, the appeal could be filed - fit
case to condone the delay - Tribunal order set aside and Petition allowed - CESTAT to take up
Stay application & appeal: High Court - Petition allowed : JHARKHAND HIGH COURT
CCE Vs NRB Bearing Ltd
CENVAT - SCN alleges that credit has been taken intentionally and wrongly - if credit is taken
intentionally then it cannot be taken wrongly but if it is mentioned wrongly, then it cannot be
intentional - SCN alleges two contrary terms and in this situation, benefit of doubt goes in favour
of respondent - Penalty u/s 11AC of CEA, 1944 correctly set aside by Commr(A) - Revenue
appeal dismissed: CESTAT - Appeal dismissed : MUMBAI CESTAT
Gail (India) Ltd Vs CCE
Central Excise - Classification - 'Pentane' classified under TSH 2711.19 and benefit of
notification No.6/2000-CE dated 01.03.2000 (Sl.No.24) and 3/2001-CE dated 01.03.2001
(Sl.No.34) claimed - disputed by department, viewing that item merits classification under TSH
2710.90, and no benefit under the cited notifications available - demands confirmed in
adjudication and agitated in present appeal both on merit and on limitation. Held: it is
undisputed that appellant had been filing the declaration claiming the classification of goods
under sub-heading 2711.19 along with the benefit of exemption notification - item classified
under TSH 2711.19 by other units of GAIL - open to officers to contest classification when it was
filed - no suppression or misstatement on the part of the appellant so as to justifiably invoke the
longer period of limitation - impugned order is set aside and appeal allowed on the point of
limitation itself with consequential relief. - Appeal allowed : DELHI CESTAT
Aroma Chemicals Vs UoI
Central Excise – rebate of duty paid on export clearances denied in adjudication, but allowed by
Revisionary authority, who remanded the matter back to the original authority for sanctioning the
rebate – Original authority again rejected the claim of the petitioner by its order dated 31.3.2007;
which was agitated before Commissioner(Appeals), who allowed the appeal by the order dated
30.10.2007 - Thereafter petitioner filed an application for refund of amount on 13.12.2007,
followed by several reminders in vain, culminating in the instant writ petition.
Held: only defense proffered by department is that the order of the Commissioner (Appeals) is
sub judice in revision before the Central Government; however, no interim order staying the
order of the appellate authority produced – Apex Court ruling in Kamlakshi case to the effect
that judicial discipline requires that order of higher appellate authorities should be followed
unreservedly by the subordinate authorities; that the mere fact that the order of the appellate
authority is not acceptable to the department and is the subject matter of an appeal, no ground
for not following it unless its operation is suspended by the competent court applies - refund
along with interest @ 6% directed till the date the actual payment - Rs. 25000/- awarded as cost
of writ. - Writ disposed of : ALLAHABAD HIGH COURT
CCE Vs Pratima Furniture And Decorators
Central Excise - condonation of delay - Sec 35B(5) of the Central Excise Act 1944 - rejection of
condonation of delay in filing departmental appeal by Tribunal contested - Held: Since there was
difference of opinion between the Commissioners, the matter was sent to the Chief
Commissioner, Pune who recommended to file an appeal - it is not as if the appellants were not
doing anything in the matter and have not taken any steps for filing the appeal; the delay has
occasioned on account of the procedural aspects - delay condoned, and the dispute between
the parties is to be decided on merits - prejudice caused to the respondent can be compensated
by awarding the costs to the appellant, quantified at Rs.25,000/- to be paid by the appellant to
the respondent - payment of costs shall be condition precedent for entertaining the appeal by
the Tribunal. - Appeal disposed of : PUNJAB AND HARYANA HIGH COURT
Kriplon Synthetics P Ltd Vs CCE
Notfn. 25/2003-CE(NT) - Appellant filing declaration on 01.04.2003 and taking CENVAT credit
on Inputs contained in processed fabrics – department raising query and assessee replying on
07.07.2003 – date of reply cannot be taken to be the date of declaration for denial of CENVAT
credit on the ground that the declaration ought to have been filed within three months – Appeal
allowed with consequential relief: CESTAT - Appeal allowed : MUMBAI CESTAT
CCE Vs Associated Capsules Ltd
CE - Cutting and slitting of Jumbo rolls of Aluminium film - respondent paying duty by taking
CENVAT credit of duty paid on Jumbo Rolls - Revenue alleging that since activity does not
amount to manufacture, credit cannot be availed - reversal sought of Rs.1.54 crores - in view of
notfn. 24/2012-CE(NT) issued u/s 5B of CEA, 1944 appellant is not required to reverse
CENVAT credit - however, verification required to ascertain that no refund claim is filed Revenue appeal dismissed: CESTAT - Appeal dismissed : MUMBAI CESTAT
CUSTOMS
Swiber Offshore Construction Pvt Ltd Vs CC
Customs – cross examination of witness - Section 138B of the Customs Act, 1962 – notice
proposing denial of benefit of Notification No.021/2002 dated 01.03.2002, demands duty with
interest and imposition of penalty by relying inter alia on statements of witnesses recorded
under section 108, as also on the opinion of Chief Chemist (DGH) – application to cross
examine witnesses including chief chemist rejected perfunctorily and communicated in record of
PH, culminating in the instant appeal.
Held: Sec 9D(1)(a) of Central Excise Act 1944 pari materia with Sec 138B of Customs Act, 1962
- circumstances listed in Sec 9D show that if witness cannot be examined for any of those five
reasons, the statement previously recorded would be relevant - adjudicating authority was
bound to follow the precedent and in absence of any specified circumstance to consider the
statement relevant without examining the witnesses, erred in rejecting the request of the
appellant to examine the witnesses and to offer them for cross-examination - examination of
witness is mandatory unless specified exceptional circumstances mentioned in clause (a) of
section 138B(1) exist - no reason to justify rejection of request made by the appellant for crossexamination if their statements were to be considered as relevant and admitted in evidence in
the interest of justice - denial of request to permit cross-examination of the Chief Chemist
(DGH), whose opinion is relied in the show cause notice, is also wholly unjustified. - Appeal
allowed : AHMEDABAD CESTAT
BE Office Automation Products Ltd Vs CC & CE
Customs - Valuation - import of low duty and medium duty photocopiers - demands by original
authority contested before Commissioner (Appeal), who set aside classification and valuation
while upholding confiscation, RF and penalty - Matter disputed at Tribunal, who reduced penalty
and upheld RF.
Held: plea that the impugned goods were not restricted goods was not taken before the
adjudicating and appellate authorities; claim unsupported by any material or evidence on record
- cases are not lacking where redemption fine and penalty had been reduced to 10% and 5%
respectively of the value of goods assessed by the authorities - no objective formula in reducing
RF, decision based on facts and circumstances of individual cases - mere payment of
redemption fine in no way dwarfs the right of the appellant to challenge both confiscation and
imposition of redemption fine and final penalty - very purpose of imposition of redemption fine is
to wipe out the element of profit on import of restricted goods - here, Tribunal did not consider
element of wiping of profit in the interface of expenditure incurred on detention and demurrage
charges as also in defraying of legal expenses and interest and side-tracked entire issue redemption fine is reduced to 10% of the value assessed by the department and Penalty is
reduced to 5% of such value except in case of appeal No.8 of 2012 where penalty has already
been reduced by the Tribunal itself - impugned orders modified - Appeals partly allowed:
PUNJAB AND HARYANA HIGH COURT
Akash Stone Industries Ltd Vs CC
Customs - Stay / Dispensation of pre deposit - import of “Polished (Honed) Marble Slabs” under
concessional rate of CVD vide S.No. 2 of the table appended to the Notification No. 4/2006-CE
dated 01.03.06 by classifying it under Customs Tariff Heading No.68022110 - denied in
adjudication on the ground that the goods are classifiable under TSH 68022190 - duty demands
with interest and penalties on firms and individual confirmed and contested herein - Held:
Ministry's letter D.O.F. No.334/3/2012-TRU dated 16.03.12 clarified that the polished marble
slabs and tiles are classifiable under C.T.H. No. 68022190; eligible for the benefit of exemption
under the said notification - applicant paid duty at the Bombay customs under protest, made out
a prima facie case for waiver - pre-deposit of entire duty along with interest and penalty is
waived and its recovery stayed till the disposal of the appeals. - Stay granted:CHENNAI
CESTAT
CC, ICD, TKD Vs Polyglass Acrylic Mfg Co Ltd
Cus - Valuation - no reasoning stands given by the original adjudicating authority for
enhancement of the value - There is no contemporaneous import value available and no expert
opinion or any import by another importer as is required for enhancement of the value Revenue appeal rejected: Tribunal by Majority
Per Member (J) - Imports referred to by Revenue are in respect of fabrics varying in thickness
and there is nothing to show that the goods are identical in quality as also in respect of import of
origin place or manufacturer etc. - Order of Commissioner(A) is legal and proper
Per Member (T) - sufficient evidence exists on the basis of which enhancement of value has
been made. Full details of thickness, details of Bill of entries of various ports and comparative
prices have been given which clearly manifest that Revenue has rightly rejected the declared
invoices value and have enhanced it based on specific NIDB Data. Further all these values
have been accepted by the concerned importers without protest and duties have been
discharged and deliveries have been taken - in view of Tribunal decision in M/s Varun
Overseas and M/s Techno Marketing 2004 (164) ELT 113 (Tri.-Del) it clearly comes out that
enhancement of prices in eight B/Es are rightly made and are legally valid.
Third Member on Reference, Member (T) - in respondent's own case the Revenue's appeal
regarding enhancement of the assessable value by way of loading the declared value was
rejected by this Tribunal - therefore, enchantment of the value by the assessing authority is not
sustainable. - Revenue appeal rejected : DELHI CESTAT
Shri Lal Mahal Limited Vs UoI
EXIM Policy - DGFT notification lifting ban on rice export - non-basmati rice exported by
petitioner companies under tripartite agreement with three PSUs, carriers subsequently
debarred - blacklisting of carrier for unspecified duration challenged - Held: debarment is never
permanent and the period of debarment invariably depends upon the nature of the offence
committed by the erring contractor - orders debarring the petitioners from all future transactions
with MMTC, STC and PEC will remain in force only for a period of four years commencing
10.11.2010. - Petitions disposed of : DELHI HIGH COURT
3F Industries Ltd Vs CC, CX & ST
Customs Act, 1962 - Section 130 - warehouse - import - re- export order - Whether the findings
of Tribunal at the interlocutory stage will be binding on the hearing of the appeal - Whether the
approach of the final hearing of the appeal is different from that in case of an interlocutory
application - Whether a plea can be raised for release of perishable nature of goods after lapse
of significant time difference. - Assessee's appeal dismissed : ANDHRA PRADESH HIGH
COURT