TaxTMI 
TaxTMI 
2011 (4) TMI 90
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....eme Court in the case of Liberty India vs. CIT 225 CTR 233 and the decision of ITAT, Amritsar Bench, in the case of M/s Shree Balaji Alloys vs. ITO in ITA No.255/Asr/2009 for the assessment year 2005-06 did not accept the assessee's claim for relief u/s 80IB of the Act in relation thereto. When this was proposed to the assessee, the assessee furnished a judgment of Delhi High Court in the case of CIT vs. Dharampal Premchand Ltd. 317 ITR 353 wherein this issue has been claimed to have been decided in its favour. The A.O, however, taking support from the decision of the Supreme Court, went on to disallow the claim of the assessee in respect of this excise duty refund. 3. The learned counsel for the assessee pointed out that decision of Delhi High Court in CIT vs. Dharampal Premchand Ltd. 317 ITR 353 has since been affirmed by the Hon'ble Supreme Court and, therefore, the issue has reached finality and the same , according to him, requires to be decided in its favour. The same stand is now being reiterated before us. 4. The assessee has also filed copy of the Notification No. 56/2002 of Central Excise at pages 26 & 27 of the paper book, copy of the excise refund orders at....
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....f excise duty in arriving at 'profit derived' for the purposes of claiming deduction u/s 80IB of the Act." 6.1 The Court further at page 364 held: "The fourth case cited by the learned counsel for the Revenue was CIT vs. Ritesh Industries Ltd. (2005) 274 ITR 324. A Division Bench of this Court was called upon to construe the provisions of Section 80.I of the Act in the context of the claim of the assessee for inclusion of amounts received as 'duty drawback' for the purposes of ascertainment of profits or gains derived from the industrial undertaking within the meaning of provision of Section 80I of the Act. The Division Bench of this Court applying the ratio of the judgments of the Supreme Court in the case of Sterling Foods (supra), Cambay Electric Supply (supra) as also the judgment of Madras High Court in the case of CIT vs. Vishwanathan & Co. (2003) 261 ITR 737 came to the conclusion that 'duty drawback' could not be regarded as profit or gain derived from an industrial undertaking as the immediate and proximate source was not the industrial undertaking but the claim for 'duty drawback'. The view of the Division Bench of this Court to which one of us (i.e. B....
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....ommencing production after 14.6.2002 as per Notification. 3. The verification report was called for from jurisdictional Range Office, Range Officer vide report C.No.GL-6(65)J/RBC-PBC/Refd/JKA/2006/606 dt. 30.8.2006 has confirmed after verification that the unit started its commercial production on 15.5.2006 as per DIC Registration No. MSU/2005/79 dated 22/10/2006. The party purchased land for establishing the unit was taken on lease from SIDCO on 11th August 2005 and after this the party installed new machinery from February 2006 to May 2006. The party has given permission for installation to two D.G. sets of (1x500 KVA & 1x82.5 KVA) NOC for which ahs been issued by the Chief Engineer, Electric Maintenance and R.E. Wing, PDD Jammu vide his office order No. CEJ/TS-I/83A/9437-41 dated 7.11.2005 and certificate of fitness in this regard was issued on 5.5.2006. As per certificate No.OQ/556 and OQ/719 dated 27.10.2005 and 29.8.2006 respectively issued by Tehsildar Samba, unit is located under Khasra No.82 min, 83 min falling under IGC Samba, Jammu which is mentioned in annexure to the Notification No. 56/2002-CE dt. 14.11.02 as amended. Range Officer has further confirmed that....
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....4 and not under any of the Acts mentioned in the subject notification. Therefore, I hold that refund of Rs 1,19,718/- claimed on account of Education Cess is not admissible to the party and is liable to be rejected. The refund of Rs 59,85,691/- claimed on account of Central Excise duty paid through Account Current (PLA) during the month of July,2006 is admissible to the party in terms of Notification No. 56/2002-CE dated 14/11/2002 as amended. 5. Having regards to the above discussion and findings, I pass the following order in this case: O R D E R (i) I sanction the refund of Rs 59,85,691/- (Rupees Fifty nine lacs eighty five thousand six hundred ninety one only) by cheque to M/s J&K Aluminum Co., Industrial Growth Centre, SIDCO, Phase-II, Samba, District Jammu on account of Excise Duty paid through Account Current (PLA) for the month of July, 2006, in terms of Notification No.56/2002-CE dt. 14/11/2002 as amended. (ii) I reject the refund of Rs 1,19,718/- (Rupees one lac nineteen thousandseven hundred eighteen only) claimed on account of Education Cess by the party. Regd. A/D M/s J&K Aluminum Co., Industrial Gro....