We notice that in this respect the provision is silent. We may therefore record that the interpretation adopted by the Tribunal in the impugned judgment would ordinarily give rise to a question of law particularly when it is pointed out that there is no previous decision of any High Court on the subject However, the issue has been made sufficiently clear by the CBDT Circular No.17/2008 dated 26-11-2008. In the said circular, this very issue has been examined and clarified in the following manner:—
The order of the Commissioner (Appeals) is not a remand order and he has clearly held that the refund was available in respect of all services except ‘Air Travel Agent service’. Therefore, I do not find any merit in the submission that the Commissioner’s (Appeals) order is a remand order. In view of the above, the grounds raised by the department challenging the order of the Commissioner (Appeals) are not valid and the decision of the Hon’ble Supreme Court in the case of MIL India Ltd. (supra) does not applicable to the facts of the present case.
In this case appellant is engaged in the manufacture of MG craft paper and they import waste paper and use the same in the manufacture of final product. The services received are in relation to the importation of waste paper such as container charges, handling charges incurred in the port etc.
It is not in dispute that every stage of conversion of thicker to thinner wire is a manufacturing activity. If that be so, all the units of the company are undertaking a manufacturing activity. Admittedly, all the units are separately registered with the Department. Therefore, all of them are registered manufacturers of Tungsten and Molybdenum wires. Each unit, therefore, has to maintain the relevant statutory records including CENVAT credit accounts.
As per explanation to Rule 2(k) of the CENVAT Credit Rules, 2004, storage tanks have been specified as capital goods and, therefore, inputs which are used in the manufacture of capital goods are also eligible for CENVAT credit. It is not in dispute that the steel items such as M.S. angles, H.R. sheets have not been used in the construction of storage tank which is a capital goods therefore, CENVAT credit on these M.S. angle and H.R. Sheet cannot be denied.
It has been held by the lower authorities that unless an assessee is able to show that the input service has nexus with the manufacture of final product, the inclusive part would not be of any help. In this case, I find that the services have been obtained for the purpose of conducting audit of the process and change of raw material suitably and the same have been presented to GTZ to receive the grant so that the company can phase out the process, which cause depletion of ozone in the atmosphere.
A perusal of the impugned order passed by the Commissioner specifies that what was pending consideration before him was the application filed by the respondent for renewal of exemption certificate issued under section 80(G) of the Income Tax Act. The order passed by the Commissioner further specifies that a notice was issued to the respondent as to why the renewal application cannot be rejected. No notice was issued by the Commissioner to the respondent calling upon them to show cause with regard to violation committed by them to cancel the exemption certificate granted under section 80(G). In the absence of any such notice, the Commissioner committed an illegality in cancelling the exemption certificate granted in favour of the respondent.
The Hon’ble Supreme Court in the case of National Thermal Power Company Limited v CIT (1998) 229 ITR 383 was considering a case where the assessee had deposited its funds not immediately required by it on short term deposits with banks. The interest received on such deposits was offered by the assessee itself for tax and the assessment was completed on that basis.
In the present case the reasons disclose that the Assessing Officer reached the belief that there was escapement of income on going through the return of income filed by the assessee after he accepted the return under Section 143(1) without scrutiny, and nothing more.
The reasoning recorded by the assessing officer cannot be said to be totally irrelevant, as the relevancy is in the context of escapement of income for the assessment year and the information may be from any source outside and an information with reference to any earlier year is outside the purview of the record of the current assessment year.
