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2014 (7) TMI 483 - AT - Central ExciseDuty of duty of excise as well service tax on the same transaction - sale and marketing of excisable goods i.e. tobacco products - Penalty - Held that:- Revenue has undertaken two parallel proceedings in respect of the same transaction. On the one hand, they have treated the entire transaction as Business Support Services rendered by M/s SRPL and has accordingly confirmed the Service Tax demand and on the other they are treating the transaction as an excise transaction and on the same consideration received, excise duty demand of ₹ 4.6 crore (approx.) has been confirmed. The transaction cannot amount to both service and manufacture and sale at the same time; it can be only one of the two. On this very ground alone, the impugned order cannot be prima facie sustained. Further, we observe that there is no evidence available on record with regard to the receipt of the consideration by the main appellant M/s FTPL and all the C&F Agents and Directors of the main appellant M/s FTPL have denied having received any money. Similarly, in the case of transaction with Rajendra Trading Company in the jurisdiction of Aurangabad Commissionerate, the Revenue has taken a view that the duty demand is not sustainable - appellants have made out a strong case in their favour for grant of stay - Stay granted.
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