TaxTMI 
TaxTMI 
2017 (4) TMI 1646
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....in mining blocks and cutting them into tiles and polishing them?" Appeal No. 631/09 1. "Whether in the facts and circumstances of the case the ITAT was justified in law in granting the benefit of deduction u/s. 80IB to the assessee despite of the facts that the assessee is not involved in manufacturing activity?" 4. At the outset, counsel for the appellant has strongly relied upon the decision of the Supreme Court in Additional Commissioner of Commercial Taxes, Bangalore vs. Ayili Stone Industries Etc. Civil Appeal No. 1983-2039/2016 decided on 18.10.2016 wherein it has been held as under:- "24. After so analysing, the Court observed the said decision had no application to the facts of the case, for only activity which came up for consideration in Rajasthan SEB case was the activity of pumping out water from a mine in order to make the mine functional. The Court opined that the controversy it was dealing with, the said activity was not required to be considered. Thereafter, the three-Judge Bench adverted to the principle stated in Aman Marble (supra). The Court distinguished the same by holding that the word "production" was not under consideration bef....
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....l be allowed to any undertaking for the assessment year beginning on the 1st day of April, 2010 and subsequent years. (2) This section applies to any undertaking which fulfils the following conditions, namely :- (a) it manufactures or produces the eligible articles or things without the use of imported raw materials; (b) it is not formed by the splitting up, or the reconstruction, of a business already in existence : Provided that this condition shall not apply in respect of any undertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such undertaking as is referred to in section 33B, in the circumstances and within the period specified in that section; (c) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose. 6. She has also relied upon the decision of this court in Arihant Tiles and Marbles Pvt. Ltd. vs. Union of India 2012 (281) ELT 692 (Raj.) wherein it has been held as under:- "In view of the aforesaid, we find that it was not open to the petitioner to avail Cenvat credit and there is no question o....
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....sment year 2003-2004 in Appeal No. 631/2009, and relied upon the following decisions:- (1). In Grace Exports vs. ITO (2012) 79 DTR 361 (Raj.) wherein it has been held as under:- "Accordingly, the answer to question No. 1 is that the Tribunal was not justified in disallowing the benefit available to the assessee under s. 10B of the IT Act; and the view as taken by the Tribunal does not stand in conformity with the law declared by the Hon'ble Supreme Court in the case of ITO vs. Arihant Tiles & Marbles (P) Ltd. (supra). Accordingly, the appeal as filed by the Revenue before Tribunal (ITA No. 357/Ju/2008) for the asst. yr. 2004-05 shall stand dismissed as regards the claim under s. 10B of the Act. In view of what has been found hereinabove in question No. 1, there appears no necessity of much dilatation on question No. 2. Suffice is to observe that if the benefits have been granted for the above year 2004-05 under s. 10B of the Act and the benefit is available for a block of 10 years, it cannot, ordinarily, be withdrawn when the nature of work and benefits remains the same. So far as the benefit under s. 80HHC is concerned, the learned counsel for the ap....
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....he assessee manufactures or produces articles or things. 6. There can be little difficulty in holding that the raw and uncut diamond is subjected to a process of cutting and polishing which yields the polished diamond, but that is not to say that the polished diamond is a new article or thing which is the result of manufacture or production. There is no material on the record upon which such a conclusion can be reached. 7. The appeal is, therefore, allowed. The order under challenge is sot aside. The question quoted above is answered in the negative and in favour of the Revenue. The assessee shall pay to the Revenue the costs of the appeal." 5. He has contended that the view taken by the Tribunal is required to be reversed in view of the observations made by the Supreme Court. 6. Mr. Jhanwar, counsel for the respondent has taken us to the judgment of the Tribunal and contended that while considering the process which has been undertaken by the assessee, the Tribunal has observed as under: "The various activities carried out by the appellant, are as under:- (i) Firstly, the appellant purchases wood, semi finished material which r....
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..... Be that as it may, in that case, it was held that "cutting" of marble blocks into slabs per se did not amount to "manufacture". This conclusion was based on the observations made by this Court in the case of Rajasthan State Electricity Board (supra). In our view, the judgment of this Court in Aman Marble Industries Pvt. Ltd. (supra) also has no application to the facts of the present case. One of the most important reasons for saying so is that in all such cases, particularly under the Excise law, the Court has to go by the facts of each case. In each case one has to examine the nature of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufacture. 17. In the present case, we have extracted in detail the process undertaken by each of the respondents before us. In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indi....