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2018 (9) TMI 1948 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE, CHENNAISettlement of case - Undervaluation - Double/Triple Axle Articulated Trailers, Tippers, General Cargo Bodies, Bulk Semi Trailers, etc. - undervaluation by not including the complete value of the finished excisable goods in the assessable value - suppression of actual value received in respect of the finished goods - correct and complete value in terms of Rule 6(3) of the Cenvat Credit Rules, 2004 not adopted - wilful suppression of facts. Demand of duty and Interest - HELD THAT:- This is a case where the applicant who was engaged in the manufacture of excisable goods such as Double/Triple Axle Articulated Trailers, Tippers, General Cargo Bodies, Bulk Semi-Trailers etc. falling under Chapter 87 of the Central Excise Tariff Act, 1985 had resorted to undervaluation in respect of the above said excisable goods that were manufactured and cleared by them and non-adoption of correct and complete value in terms of Rule 6(3) of the Cenvat Credit Rules, 2004 - Investigations conducted by the Officers of Headquarters Preventive Unit, Bangalore-I Commissionerate, resulted in issue of show cause notice in the impugned case demanding Central Excise duty to the tune of ₹ 31,00,460/- along with applicable interest. Penal provisions were also proposed on the applicant and co-applicants. Considering the report of the Revenue in the instant case which reiterated the earlier stand of the Principal Commissioner to consider the applicant’s request to adjust the payment made as Service Tax against the demand of 6% of differential Central Excise duty, on the same issue, the Bench is inclined to agree with the stand of the Revenue and accordingly settles the Service Tax liability as ₹ 13,07,524/-. However, as the applicant has already paid Service Tax at higher percentage (12.36%) and no further liability subsists in this regard. The applicant has also undertaken not to claim refund on this count. As the applicant has made true and full disclosure of the liability before the Bench and also co-operated in the proceedings before the Bench, the Bench thus holds it a fit case to settle the duty liability at ₹ 16,05,691/-. Imposition of penalty on applicant - HELD THAT:- This is a case where the applicant failed to adopt correct assessable value and had resorted to undervaluation in respect of the excisable goods that were manufactured and cleared by them and did not adopt correct and complete value in terms of Rule 6(3) of the Cenvat Credit Rules, 2004 in respect of nil rated clearances made under Notification No. 12/2012-C.E., dated 17-3-2012. While filing the settlement application, the applicant has admitted to the allegations made in the SCN - But for the painstaking investigations by the Officers of Headquarters Preventive Unit, Bangalore-I Commissionerate, the duty evasion would have gone unnoticed. Hence penalty is imposable on the applicant. However, considering the co-operation extended in the proceedings and true and full disclosure made before the Bench, the Bench is inclined to take a lenient view and grants partial immunity from penalty to the applicant. Penalty on the co-applicants - HELD THAT:- It is ascertained that both the partners of the applicant firm, Shri Gopala Reddy B. and Shri K. Ramesha were the key persons fully involved in the day to day activities of the firm and had masterminded the modus operandi to evade payment of Excise duty. Hence penalty is imposable on the co-applicants. However, considering the co-operation extended in the proceedings before the Bench true and full disclosure made before the Bench, and the applicant had paid Service Tax @ 12.36% instead of 6% CED (this 2nd component of the demand comes to ₹ 13,07,524/-), the Bench is inclined to take a lenient view and grants partial immunity from penalty to the co-applicants. Prosecution - HELD THAT:- Considering the facts and circumstances of the case, the Bench is inclined to grant immunity from prosecution to the applicant and the co-applicant. All the immunities as above are granted under Section 32K of Central Excise Act, 1944. The immunities granted above are liable to be withdrawn if, at any time, it comes to the notice of the Bench that, in obtaining this order of settlement, any material particulars have been withheld or any false evidence has been given.
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