M/s. J & K Aluminium Co., New Delhi V. ITO, New Delhi

ITA 3303/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4136 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-02-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 06-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANT MISHRA
• Assessee Lawyers: MRS RANO JAIN CAS
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ITA NO.3303/DEL/2010 ASSTT.YEAR: 2007-08 M/S J.K.ALUMINIUM CO. VS INCOME TAX OFFICER, 302, AMBER TOWER, WARD 20(3), NEW DELHI. AZADPUR COMMERCIAL COMPLEX, AZADPUR, DELHI-110033. PAN: AAFFJ0625F. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VED JAIN & MRS RANO JAIN, CAS RESPONDENT BY: SHRI JAYANT MISHRA, CIT(DR) O R D E R PER VEERABHADRAPPA, V.P. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING OUT OF THE ORDER DATED 24.05.2010 OF THE CIT (APPEALS) FOR THE ASSESSMENT YEAR 2007-08. 2. THE ONLY ISSUE IN THIS APPEAL RELATES TO THE ASS ESSEES CLAIM FOR DEDUCTION U/S 80IB IN RESPECT OF REFUND OF EXCISE D UTY. THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF MANUFACTURE OF ALUMINUM WIRE RODS AT IGP, SIDCO, PHASE-II SAMBA, JAMMU & KASHMIR. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FILED COMPUTATION OF TAXABLE INCOME WHEREIN DEDUCTION U/S 80IB AMOUNTING TO RS 5,85,84,089/- WA S CLAIMED. THE A.O WENT THROUGH THE DETAILS AND FOUND THAT THE ASSESSE E HAD RECEIVED EXCISE DUTY REFUND OF RS 5,68,41,800/- DURING THE FINANCIAL YEA R. THE A.O BY APPLYING ITA NO. 3303/DEL/2010 2 RATIO LAID DOWN BY THE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT 225 CTR 233 AND THE DECISION OF ITAT, AMRITSAR BENCH, IN THE CA SE OF M/S SHREE BALAJI ALLOYS VS. ITO IN ITA NO.255/ASR/2009 FOR THE ASSESSMENT YEAR 2005-06 DID NOT ACCEPT THE ASSESSEES CLAIM FO R 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 CAS E 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, WEN T ON TO DISALLOW THE CLAIM OF THE ASSESSEE IN RESPECT OF THIS EXCISE DUT Y 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 HONBLE SUPREME COURT AND, THE REFORE, THE ISSUE HAS REACHED FINALITY AND THE SAME , ACCORDING TO HIM, R EQUIRES TO BE DECIDED IN ITS FAVOUR. THE SAME STAND IS NOW BEING REITERATED BEFO RE US. 4. THE ASSESSEE HAS ALSO FILED COPY OF THE NOTIFICA TION NO. 56/2002 OF CENTRAL EXCISE AT PAGES 26 & 27 OF THE PAPER BOOK, COPY OF THE EXCISE REFUND ORDERS AT PAGES 28 TO 45 OF THE PAPER BOOK AND COPY OF LEDGER A/C OF EXCISE DUTY PAID, PLA A/C , PLA (EDUCATION CESS) A/C, PLA RECOVERABLE AND PLA REFUND AT PAGES 46 TO 55 OF THE PAPER BOOK. RELYING UPON THESE, IT WAS STRONGLY ARGUED THAT IN THE LIGHT OF THE DECISION O F DELHI HIGH COURT IN DHARAMPAL PREMCHAND LTD. (SUPRA), THE ASSESSEES CL AIM MUST BE ACCEPTED. 5. THE LEARNED D.R, ON THE OTHER HAND, VEHEMENTLY P OINTED OUT ALTHOUGH THE DECISION OF DELHI HIGH COURT WHICH IS JURISDICT IONAL HIGH COURT, HAS ITA NO. 3303/DEL/2010 3 SINCE BEEN AFFIRMED BY THE SUPREME COURT, THE RATIO OF THE APEX COURT IN LIBERTY INDIA 225 CTR 233 SUPPORTS THE DEPARTMENTAL STAND. 6. WE HAVE CAREFULLY GONE THROUGH THE RECORDS AND I N OUR VIEW THE DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF DHARMPAL PREMCHAND LTD. (SUPRA) COVERS THE ISSUE IN FAVOUR O F THE ASSESSEE. THE HONBLE DELHI HIGH CURT HAS CLEARLY SET OUT THE PRO CEDURE FOR GRANTING OF EXEMPTION UNDER THE SCHEME. THE ASSESSEE IN THE FIR ST INSTANCE PAID THE EXCISE DUTY FROM ITS CURRENT ACCOUNT. THE STATEMENT WITH RESPECT TO CLEARANCE IS MADE, IS SUBMITTED TO THE CONCERNED AUTHORITIES I.E. CENTRAL EXCISE BY THE 7 TH OF THE SUCCEEDING MONTH. THE AUTHORITIES AFTER VER IFYING THE CLAIM OF THE ASSESSEE ARE REQUIRED TO GRANT THE REFUND DURING TH E MONTH UNDER CONSIDERATION TO THE MANUFACTURER BY THE 15 TH OF THE SUCCEEDING MONTH WHERE IT WAS NOT POSSIBLE FOR THE CONCERNED AUTHORITIES T O VERIFY THE CLAIM OF THE ASSESSEE; THUS HAS TO BE MADE ON PROVISIONAL BASIS. EXPLAINING THE ABOVE PROCEDURE, THE JURISDICTIONAL HIGH COURT OBSERVED A S UNDER (PAGE 362): IN THESE CIRCUMSTANCES, THE SUBMISSIONS OF THE LEA RNED COUNSEL FOR THE REVENUE IS THAT THERE IS NO DIRECT NEXUS BETWEEN REFUND OF EXCISE DUTY PAID OR THAT THE REFUND OF EXCISE DUTY PAID WAS DEPENDENT ON THE SAI D NOTIFICATIONS IS, TO SAY THE LEAST, COMPLETELY UNTENABLE. AS A MATTER OF FACT AS FOUND BY THE TRIBUNAL, AS WELL AS, THE CIT(A) IN THE INSTANT CASE, THE ASSESSEE HA S ADOPTED AN INCORRECT ACCOUNTING METHODOLOGY. THE ASSESSEE AS FOUND BY TH E AUTHORITIES BELOW HAD ON THE PAYMENT OF EXCISE DUTY DEBITED THE PROFIT AND L OSS ACCOUNT AND UPON RECEIPT OF REFUND CREDITED THE PROFIT AND LOSS ACCOUNT. THE NE T EFFECT ON THE PROFIT AND LOSS WAS NIL ON ACCOUNT OF THE METHODOLOGY FOLLOWED BY THE ASSESSEE. THERE WAS THUS, ACCORDING TO US, NO REASON TO EXCLUDE THE AMOUNT OF REFUND OF EXCISE DUTY IN ARRIVING AT PROFIT DERIVED FOR THE PURPOSES OF CL AIMING 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 T HE REVENUE WAS CIT VS. RITESH INDUSTRIES LTD. (2005) 274 ITR 324. A DIVISION BENC H OF THIS COURT WAS CALLED UPON TO CONSTRUE THE PROVISIONS OF SECTION 80.I OF THE ACT IN THE CONTEXT OF THE ITA NO. 3303/DEL/2010 4 CLAIM OF THE ASSESSEE FOR INCLUSION OF AMOUNTS RECE IVED AS DUTY DRAWBACK FOR THE PURPOSES OF ASCERTAINMENT OF PROFITS OR GAINS DERIV ED FROM THE INDUSTRIAL UNDERTAKING WITHIN THE MEANING OF PROVISION OF SECT ION 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 INDUSTRI AL UNDERTAKING AS THE IMMEDIATE AND PROXIMATE SOURCE WAS NOT THE INDUSTRI AL UNDERTAKING BUT THE CLAIM FOR DUTY DRAWBACK. THE VIEW OF THE DIVISION BENCH OF THIS COURT TO WHICH ONE OF US (I.E. BADAR DURRE AHMED J.) WAS A PARTY, WAS BAS ED IN THE CONTEXT OF THE FACTS OBTAINING IN THE SAID CASE. IN THE INSTANT CASE THE PROXIMITY WITH INDUSTRIAL ACTIVITY IS CLEAR AND THERE IS NO SCOPE FOR HOLDING OTHERWIS E. 6.2 AT PAGE 366, THE JURISDICTIONAL HIGH COURT HELD : AN IMPORTANT ASPECT OF THE MATTER WHICH CLEARLY DI STINGUISHES THE INSTANT CASE FROM THE FACTS OF THE OTHER CASES CITED BEFORE US I S, THAT THE NET EFFECT OF THE ACCOUNTING METHODOLOGY EMPLOYED BY THE ASSESSEE WAS THAT IT DID NOT, IN SUM AND SUBSTANCE, IMPACT THE DERIVATION OF PROFITS AND GAI NS ASCERTAINABLE FOR THE PURPOSES OF DEDUCTION U/S 80IB OF THE ACT. 6.3 THE ABOVE DECISION OF THE DELHI HIGH COURT HAS SINCE BEEN APPROVED BY THE SUPREME COURT WHERE DEPARTMENT HAS FILED AN SLP. AT THE FIRST HEARING THE ASSESSEE WAS ORDERED TO FILE AN ADDITIO NAL AFFIDAVIT INDICATING THEREIN THE ACCOUNTING TREATMENT THAT IS FOLLOWED B Y THE ASSESSEE AS IS CLEAR FROM THE FOLLOWING ORDER: SUPREME COURT IN THE CASE OF CIT VS. DHARAM PAL PR EM CHAND LTD. ORDER DATED 11.1.2010: THE SPECIAL LEAVE PETITION SHALL STAND OVER FOR FO UR WEEKS IN ORDER TO ENABLE THE ASSESSEE HEREIN TO FILE AN ADDITIONAL AF FIDAVIT INDICATING THEREIN THE ACCOUNTING TREATMENT WHICH HAS BEEN GIV EN BY THE ASSESSEE TO THE EXPENSES INCURRED TOWARDS PAYMENT OF EXCISE DUTY. 6.4 IN THE PRESENT CASE OF THE ASSESSEE, THE RULES THAT ARE PLACED IN THE PAPER BOOK CLEARLY ENVISAGE REFUND OF THE AMOUNT AR ITHMETICALLY EQUAL TO THE EXCISE DUTY PAID. THE EXCISE DUTY REFUND ORDER WHIC H IS PLACED AT PAGES 29 & ITA NO. 3303/DEL/2010 5 30 ARE REPRODUCED, JUST TO SHOW HOW THIS CASE IS ID ENTICAL TO THE PROCEDURE AND THE SCHEME DEALT WITH BY THE JURISDICTIONAL HIG H COURT IN THE CASE OF DHARAMPAL PREMCHAND LTD.: BRIEF FACTS OF THE CASE M/S J&K ALUMINUM CO., INDUSTRIAL GROWTH CENTRE, SID CO, PHASE-II, SAMBA, DISTRICT JAMMU, ARE HOLDING CENTRAL EXCISE REGISTRATION NO.A AFFJO625FXM001 DATED 03.03.2006 ARE ENGAGED IN THE MANUFACTURE OF ALUMIN UM WIRE ROD FALLING UNDER TARIFF ITEM NO.76011040 OF THE 1 ST SCHEDULE TO THE CENTRAL EXCISE TARIFF ACT 1985 (5 OF 1986). 2. THE PARTY HAS FILED A REFUND CLAIM OF RS.61,05,409/ - ON ACCOUNT OF CENTRAL EXCISE DUTY AND EDUCATION CESS PAID THROUGH PLA FOR THE MONTH OF JULY 2006 UNDER NOTIFICATION 56/2002-CE DATED 14.11.02 AS AME NDED. THE UNIT IS CLAIMING REFUND IN THE CATEGORY OF NEW UNITS, COMME NCING PRODUCTION AFTER 14.6.2002 AS PER NOTIFICATION. 3. THE VERIFICATION REPORT WAS CALLED FOR FROM JURISDI CTIONAL 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 ESTABLISH ING THE UNIT WAS TAKEN ON LEASE FROM SIDCO ON 11 TH AUGUST 2005 AND AFTER THIS THE PARTY INSTALLED NEW MACHINERY FROM FEBRUARY 2006 TO MAY 2006. THE PART Y HAS GIVEN PERMISSION FOR INSTALLATION TO TWO D.G. SETS OF (1X500 KVA & 1 X82.5 KVA) NOC FOR WHICH AHS BEEN ISSUED BY THE CHIEF ENGINEER, ELECTR IC 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 27.10.20 05 AND 29.8.2006 RESPECTIVELY ISSUED BY TEHSILDAR SAMBA, UNIT IS LOC ATED 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 THE PARTY CLEARE D GOODS VALUED AT RS.6,57,22,059/- ON PAYMENT OF CENTRAL EXCISE DUTY OF RS.1,05,15,521/- AND EDUCATION CESS OF RS.2,10,310/- IN THE FOLLOWING MA NNER:- (1) DUTY PAID THROUGH PLA RS.59,85,691/- (2) EDU.CESS PAID THROUGH PLA RS. 1,19,718/- (3) DUTY PAID THROUGH CENVAT CREDIT ACCOUNT RS. 45,29,830/- (4) ED.CESS PAID THROUGH CENVAT CREDIT ACCOUNT RS . 90,592/- RANGE OFFICE HAS CONFIRMED THAT THERE IS NIL CLOSIN G BALANCE OF CENVAT CREDIT AT THE END OF THE MONTH AND HENCE THE REFUND CLAIM OF RS.59,85,691/- IS ADMISSIBLE TO THE ITA NO. 3303/DEL/2010 6 PARTY, WHICH MAY BE SANCTIONED BY WAY OF CHEQUE, RE FUND CLAIM OF RS.1,19,718/- IN RESPECT OF EDUCATION CESS IS NOT ADMISSIBLE IN TERM S OF NOTIFICATION NO.56/2002-CE DATED 14.11.2002 (AS AMENDED). 4. I HAVE CAREFULLY GONE THROUGH THE CASE RECORDS INCL UDING THE REPORT OF JURISDICTIONAL RANGE OFFICER MENTIONED ABOVE. I FI ND THAT THE PARTY HAS CLAIMED REFUND OF RS.59,85,691/- ON ACCOUNT OF CENT RAL EXCISE DUTY AND RS.1,19,718/- ON ACCOUNT OF EDUCATION CESS PAID THR OUGH PLA. I ALSO FIND THAT 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 UNITS WAS TAKEN ON LEASE FROM SIDCO ON 11 TH AUGUST 2005 AND AFTER THIS THE PARTY INSTALLED NEW MACHINERY FR OM FEBRUARY 2006 TO MAY 2006. THE PARTY HAS GIVEN PERMISSION FOR INSTALLAT ION OF TWO D.G. SETS OF (1X500 KVA & 1X82.5 KVA) NOC FOR WHICH HAS BEEN ISS UED BY THE CHIEF ENGINEER, ELECTRIC MAINTENANCE AND R.E. WING, PDD J AMMU VIDE HIS OFFICE ORDER NO.CEJ/TS-1/83A/9437-41 DATED 7.11.2005 AND C ERTIFICATE OF FITNESS IN THIS REGARD WAS ISSUED ON 5.5.2006. AS PER CERTIFI CATE NO.OQ/719 DATED 29.8.2006 OF TEHSILDAR SAMBA, JAMMU, UNIT IS LOCATE D DUENR KHASRA NO. 82 MIN, 83 MIN & 84 MIN (WHICH ARE PARTS OF KHASRA NO. 82, 83 & 84 RESPECTIVELY) CLASSIFIED DURING BANDOBAST UNDER THE TYPE OF LAND VIZ MEREDEEM BANJAR QADEEM, GAIR MUMKIN SITUATED AT IND USTRIAL GROWTH CENTER, SAMBA OF VILLAGE MENDHERA, TEHSIL SAMBA, WHICH IS M ENTIONED IN ANNEXURE-II TO THE NOTIFICATION NO. 56/2002-CE DT. 14/11/02 AS AMENDED. I OBSERVE THAT REFUND OF RS 1,19,718/- CLAIMED BY THE PARTY ON ACC OUNT OF PAYMENT OF EDUCATION CESS PAID THROUGH ACCOUNT CURRENT (PLA) I S NOT ADMISSIBLE TO THE PARTY ON THE GROUND THAT THE EDUCATION CESS HAS BEE N LEVIED UNDER THE FINANCE BILL 2004 AND NOT UNDER ANY OF THE ACTS MENTIONED I N THE SUBJECT NOTIFICATION. THEREFORE, I HOLD THAT REFUND OF RS 1,19,718/- CLAI MED ON ACCOUNT OF EDUCATION CESS IS NOT ADMISSIBLE TO THE PARTY AND I S LIABLE TO BE REJECTED. THE REFUND OF RS 59,85,691/- CLAIMED ON ACCOUNT OF CENT RAL EXCISE DUTY PAID THROUGH ACCOUNT CURRENT (PLA) DURING THE MONTH OF J ULY,2006 IS ADMISSIBLE TO THE PARTY IN TERMS OF NOTIFICATION NO. 56/2002-C E 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 FIF TY NINE LACS EIGHTY FIVE THOUSAND SIX HUNDRED NINETY ONE ONLY) BY CHEQU E TO M/S J&K ALUMINUM CO., INDUSTRIAL GROWTH CENTRE, SIDCO, PHAS E-II, SAMBA, DISTRICT JAMMU ON ACCOUNT OF EXCISE DUTY PAID THROU GH ACCOUNT CURRENT (PLA) FOR THE MONTH OF JULY, 2006, IN TERMS OF NOTIFICATION NO.56/2002-CE DT. 14/11/2002 AS AMENDED. ITA NO. 3303/DEL/2010 7 (II) I REJECT THE REFUND OF RS 1,19,718/- (RUPEES ONE LA C NINETEEN THOUSAND SEVEN HUNDRED EIGHTEEN ONLY) CLAIMED ON ACCOUNT OF EDUCATION CESS BY THE PARTY. SD/- ASSISTANT COMMISSIONER REGD. A/D M/S J&K ALUMINUM CO., INDUSTRIAL GROWTH CENTRE, SIDCO, PHASE-II, SAMBA, DISTRICT JAMMU. 6.5 AS WE HAVE OBSERVED FROM THE PAPERS IN THE PAPE R BOOK, THE EXEMPT AMOUNT HAS BEEN PAID AS IS EVIDENT FROM THE ORDERS GRANTING THE REFUND WHICH ARE PLACED. THE SUPREME COURT AFTER EXAMINING THE AFFIDAVITS PASSED ON 11.01.2010 IN THE CASE OF CIT VS. DHARAM PAL PRE M CHAND LTD. AND AFTER HEARING BOTH THE PARTIES, EVENTUALLY DISMISSED THE APPEAL OF THE DEPARTMENT AGAINST ORDER OF DELHI HIGH COURT ON 22.02.2010. AS IS CLEAR, THE NOTIFICATION DATED 14.11.2002 EXEMPTS THE AMOUNT OF EXCISE DUTY PAID BY THE ASSESSEE AS SUCH EXCISE DUTY PER SE IS NOT LEVIABLE . IN ORDER TO ENSURE PROPER CONTROL OVER THE TRANSACTIONS, THE NOTIFICATION ONL Y REQUIRES THE MANUFACTURERS TO FIRST DEPOSIT THE EXCISE DUTY AND THEN CLAIM THE REFUND OF THE SAME NEXT MONTH. THUS THE REFUND IS ASSESSEES OWN MONEY ITSELF IN A WAY SECURITY DEPOSIT WHICH IS BEING REFUNDED ON SUB MISSION OF THE EVIDENCE DEPOSITING THE SAME. THEREFORE, IN OUR VIEW THIS IS NOT AN INCOME AT ALL. THEREFORE, THE A.O, IN OUR VIEW, WAS NOT JUSTIFIED IN MAKING A SEPARATE ADDITION OF INCOME AND THEREBY DENYING THE RELIEF E LIGIBLE U/S 80.IB OF THE ACT ON THAT AMOUNT. 7. BEFORE WE PART WITH THE MATTER, WE THINK IT FIT TO DEAL WITH THE CONTENTION OF THE REVENUE THAT THE DECISION OF THE APEX COURT IN LIBERTY INDIA (SUPRA) CONCLUDES THE ISSUE IN FAVOUR OF THE REVENUE. WE MAY SAY THE JUDGMENT IN THE CASE OF LIBERTY INDIA WAS ON THE IS SUE OF DEPB/DUTY DRAW ITA NO. 3303/DEL/2010 8 BACK WHICH WAS AN INCENTIVE AND WAS NOT CONCERNED W ITH THE REFUND OF THE AMOUNT PAID. THE COURT IN THAT CASE HAS NEGATED THE CONTENTION OF THE ASSSSEE AT PAGE 234 BY OBSERVING AS UNDER: THE RULES DO NOT ENVISAGE A REFUND OF AN AMOUNT AR ITHMETICALLY EQUAL TO CUSTOMS DUTY OR CENTRAL EXCISE DUTY ACTUAL LY PAID BY AN INDIVIDUAL IMPORTER-CUM-MANUFACTURER. SUB-SECTION ( 2) OF SECTION 75 OF THE CUSTOMS ACT REQUIRES THE AMOUNT OF DRAWBACK TO BE DETERMINED ON A CONSIDERATION OF ALL THE CIRCUMSTANCES PREVALE NT IN A PARTICULAR TRADE AND ALSO BASED ON THE FACTS SITUATION RELEVAN T IN RESPECT OF EACH OF VARIOUS CLASSES OF GOODS IMPORTED. 7.1 THE CASE OF THE ASSESSEE BEFORE US IS CONCERNED WITH THE REFUND OF EXCISE DUTY AND CONSIDERATION OF THE SAME FOR DEDUC TION U/S 80IB OF THE ACT. THE SCHEME AS WELL AS THE METHODOLOGY OF THE OPERAT IONS ARE ALL DISCUSSED SO AS TO HIGHLIGHT THE DISTINCTION OF THIS CASE FRO M THE DECISION OF LIBERTY INDIA. IN ANY CASE, THE DECISION OF DHARAM PAL PREM CHAND LTD. OF DELHI HIGH COURT HAS BEEN AFFIRMED BY THE SUPREME COURT W HICH FACT ITSELF CANNOT BE IGNORED AS THE CASE OF DHARAMPAL PREMCHAND LTD. WAS CONCERNED WITH THE ISSUE RELATING TO SECTION 80.IB OF THE ACT. 8. IN THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCED IN OPEN COURT ON 29.04.2011. SD/- SD/- (RAJPAL YADAV) (G.E.VEERABHADRAPPA) JUDICIAL MEMBER VICE PRESIDENT DATED: APRIL 29 ,2011. DRS ITA NO. 3303/DEL/2010 9 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT, 2. RESPONDENT, 3. CIT 4. CIT(A) 5. DR ASSTT.REGISTRAR, ITAT