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2016 (3) TMI 262 - AT - Central ExciseSSI exemption benefit under Notification No. 8/2002-CE dated 01.3.2002 denied - demand of duty alongwith interest and imposed penalty of equal amount of duty on the assessee and also imposed penalty of ₹ 5 Lakh on the partner of the assessee, amongst others - Held that:- The partner of the assessee, in various statements, had categorically stated that they had charged invoice value to the customers including the duty and other taxes. It is seen that the customers, in their statements had also admitted that the value is inclusive of excise duty. Hence, while computing the value of clearances for the purpose of exemption notification, it should be determined after extending cum-duty benefit. We find that the Tribunal in the case of Meghdoot Gramoudyog Sewa Sansthan vs. CCE, Noida (2010 (11) TMI 911 - CESTAT NEW DELHI ) held that the assessee being found ineligible for exemption, the sale price has to be treated as including excise duty and assessable value determined after abating it. Thus it is clear that the invoices mentioned in Annexure ‘C’ of the Show Cause Notice has already been included in the Annexure ‘A’ while computing the value of clearances. Therefore, the demand of duty as shown in Annexure ‘C’, as included in Annexure ‘A’, cannot be sustained. We find that the demand of Central Excise duty on the partnership firm was confirmed and the penalty was imposed under Section 11AC of the Central Excise Act, 1944. It is noticed that the partnership firm has already paid the duty alongwith interest and penalty to the extent of 25% of the duty, as per Section 11AC of the Act. Therefore, in the facts and circumstances of the case, imposition of separate penalty on the Partner of the firm (i.e. Appellant No.2) is not justified. Demand of duty alongwith interest and penalty with the option to pay 25% of duty under Section 11AC of the Central Excise Act, 1944, on the assessee are upheld; subject to, the value of clearances for the purpose of determining exemption benefit, the cum-duty benefit would be extended and the demand of duty on the basis of Annexure ‘C’ to the Show Cause Notice alongwith interest and penalty is set-aside. The adjudicating authority is directed to re-determine and re-quantify the demand of duty, interest and penalty as per above directions.
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