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2012 (1) TMI 123 - CESTAT AHMEDABADDuty demand - Suppression of facts - Place of removal - Creation of dummy unit to evade duty - Under valuation of goods - Invocation of extended period of limitation - Penalty u/s 11AC - Burden of proof - SSI Exemption - Held that:- for the purpose of manufacture of Cell Pack on job work basis by the appellants M/s. Sysmex Transasia Bio-Medicals Ltd. which applied and obtained a loan licence No. DD162 issued by the Drugs Licensing Authority, Daman. The copies of the subject licence and manufacturing agreement dated 23-7-1998 between the appellants and M/s. Sysmex Transasia Bio-Medicals Ltd. and the certificate dated 7-6-2003 for renewal of loan licence were also produced. The appellants also submitted that M/s. Sysmex Transasia Bio-Medicals Ltd. were importing the basic raw material namely Cell Pack from M/s. Sysmex Corporation (Japan/Singapore) after clearing the same on payment of appropriate customs duty, the same was being supplied under cover of challans or such documents to the appellants for the manufacture of Cell Pack on job work basis. On completion of the manufacture of Cell Pack the appellants were returning the same to M/s. Sysmex Transasia Bio-Medicals Ltd. under the cover of central excise invoice. The appellants were ultimately selling the goods from the godown at the prices ranging from Rs. 2100/- per unit to Rs. 3100/- per unit. They were filing regular monthly returns and maintaining records prescribed under the law. The facts being so and supported by several documents as a proof, it can be safely concluded that M/s. STBM cannot be a dummy unit - There is nothing on record to show that Cell Pack manufactured on job work out of the raw material supplied by M/s. Sysmex Transasia Bio-Medicals Ltd. were not dispatched to the premises Gala No. 5, Prithvi, Industrial Complex, Somnath, Nani, Daman. The copies of transport receipt showing excise invoices were produced by the appellants and they had paid transportation charges to the transporters. For purpose of Section 4 concerned would be taken to be the related person if there is a reciprocity of interest between the assessee and such allegedly related person - The burden to prove that the goods in question were under-valued by the respondent lies on the Revenue which the Revenue has failed to discharge. The clearance value exceeded because it was arrived at by adopting the value at which the appellants have sold their packs from depot instead of adopting the value on which they sold to M/s. STBM. The value of clearances of diagnostic reagents and demokits as well as the value of packing charges and forwarding charges have also been added to the value of clearance. However, the contention of the appellant is that they have not collected any duty from their customers in respect of clearances made by them by availing the benefit of SSI exemption - unless it is proved otherwise, the value of clearances as contended by the appellants has to be considered. Since there is no evidence to prove otherwise the contention of the Revenue remains unsubstantiated and the SSI exemption is rightly available to the appellants. There was no suppression or misstatement of facts with an intention to evade payment of duty nor there was any evidence either documentary or otherwise comingforth to support the case of Revenue - Following decision of Union of India & Ors. v. Atic Industries Ltd. [1984 (6) TMI 51 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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