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Central Excise - Case Laws
Showing 41 to 60 of 159 Records
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2019 (12) TMI 935 - CESTAT NEW DELHI
Condonation of delay in filing - Time Limitation - CENVAT Credit - capital goods - period from 30.06.2011 to 30.06.2013 - reason for delay given is that the person who was handling the matter of Excise has left the job without any prior notice - HELD THAT:- The reason is not sufficient to condone the delay. The appellant has failed even to specify the name of the concerned person and the date when he would have left the job. Above all, Commissioner (Appeals) has no statutory power to condone the delay beyond 90 days (60+30 days). The present appeal has been filed beyond said 90 days. Accordingly, there are no infirmity in the order of Commissioner (Appeals).
Hon’ble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT] where it was held that it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal.
The appeal stands dismissed, not only for want of prosecution but also on merits of the case.
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2019 (12) TMI 934 - CESTAT MUMBAI
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- In the Revenue’s appeal, the amount involved is ₹ 11,86,250/-, hence covered by the Litigation Policy Circular F. No. 390/Misc/116/2017-JC dated 11.07.2018.
Appeal of Revenue dismissed.
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2019 (12) TMI 888 - PUNJAB & HARYANA HIGH COURT
Loss of value of seized goods - insecticides - expiry of seized goods - direction to Respondents to pay value of goods, which have expired and could not be sold due to seizure - HELD THAT:- Respondent-DGCEI seized insecticides which are having shelf life on account of expiry date. The goods were seized on 17.11.2015 and provisional release order was passed on 13.4.2016 i.e. after the expiry of 5 months. The release conditions were onerous which this court vide order dated 13.6.2016 modified. The value of goods and the fact that goods have become unfit for sale is not in dispute.
Respondent is not solely at fault and responsible for loss of goods as alleged by Petitioner, whereas we find that Petitioner is also partially responsible - Petitioner should and must have sold goods by availing the release as soon as provisional release order was passed. Thus, we find that Petitioner and Respondent must equally bear loss of value of goods.
Petitioner is entitled to 50% of value of goods, as aforesaid determined, which are lying in the factory premises of the Petitioner. The Respondent shall refund in cash 50% of value of goods within one month from the date of receipt of copy of this order failing which the petitioner shall be entitled to payment of interest at the rate of 9% on the aforesaid amount due from the date of present order till the date of payment, which the Department would be free to recover from the sanctioning/competent Authority.
Petition allowed.
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2019 (12) TMI 887 - CESTAT MUMBAI
100% EOU - Refund of education cess paid for third time - legality of payment of Education Cess for the third time - refund claim rejected on the ground of unjust enrichment - HELD THAT:- The Adjudicating authority initially rejected the refund claim on the ground of limitation since the same was filed in 2010 for the payment made under protest. However, the Appellate Commissioner in the order set aside the said findings observing that the education cess was paid for the third time under protest, therefore, not barred by limitation under Section 11B of Central Excise Act, 1944. However, he concludes that since the Appellant failed to establish that the burden of duty has not been passed on to the customer, therefore, not eligible for refund. The documents referred to by the Commissioner (Appeals) have not been examined by the Adjudicating authority, while analysing the refund claim. He has passed the order only on the issue of limitation, without scrutiny of other issues.
It is necessary to remand the matter to the Adjudicating authority to analyse the relevant documents relating to unjust enrichment, quantum of refund admissible, etc. Needless to say that a reasonable opportunity of hearing be given to the Appellant - appeal allowed by way of remand.
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2019 (12) TMI 852 - SC ORDER
Permission for withdrawal of SLP - Maintainability of appeal - appeal dismissed for non-payment of interest - HELD THAT:- The special leave petition is dismissed as withdrawn.
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2019 (12) TMI 850 - CESTAT NEW DELHI
Adjustment of excess paid duty with less paid duty - the short payment of duty is during the month of July and August, 2016 - there has been simultaneous excess duty paid during the other months which is much more than the alleged short paid duty - provisional assessment - Rule 7 of Central Excise Rules, 2002 - HELD THAT:- After a final assessment order is passed, if the duty paid in terms of provisional assessment is less than the duty payable after the final assessment, the assessee is liable to pay the interest on the short fall. In the entire scheme of Rule 7, there is no indication that when an assessee is permitted to pay duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately - Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration.
In the present case, it is an admitted fact that duty of ₹ 4,42,65,588/- has been paid by the appellant in excess for the period from April 2016 to June, 2016 and September 2016 to March, 2016. However, there is short payment of duty of ₹ 1,20,75,019/- during July and August, 2016. In view of above provision, the appellant was entitled for refund of ₹ 4,42,65,588/-. This is also an admitted fact that the sister concerns (smelter units of the appellants) to whom the goods were supplied have already filed the cenvat credit in respect of the duty paid on the said goods. The refund has rightly not been claimed by the appellant - where the goods are supplied to the sister concern for captive consumption, the adjustments of excess duty towards short payment in the subsequent period should not have been denied.
In the present case, the net duty is for the financial year 2016-17 as was paid on provisional assessment basis. The short payment for two months of the same year is, therefore, to be adjusted against the excess paid during the another period of the same financial year.
Revenue neutrality - HELD THAT:- It has already been held in the case of COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, VAPI VERSUS M/S TARAPUR GREASE INDIA PVT. LTD., VINOD VYAS, BHARAT VYAS, M/S STANDARD GREASE, M/S STANDARD OIL AND GREASE [2015 (11) TMI 1168 - BOMBAY HIGH COURT] that once the goods have been delivered only at the factories of the assessee from the associated Companies then no loss occurs to the Revenue - The assessee would drive no benefit by not reversing the cenvat credit on inputs when sister concerns are also eligible to take cenvat credit. The doctrine of principle of revenue neutrality is duly applicable to such cases.
When CAS-4 is formed basis for arriving at transaction value, the overall duty liability/ short payment should have been arrived at after considering duty already paid during that financial year on such goods and the adjustments, if any. Accordingly the findings of the authority below denying the adjustment of excess duty paid towards the short payment of same financial year are held to be untenable - Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 849 - CESTAT AHMEDABAD
Imposition of penalty u/r 26 (1) of Central Excise Rules, 2002 - Clandestine removal - supply of polyester metalizing on job work basis under the cover of Job work challan - alleged evasion of duty - benefit of N/N. 214/86-CE - HELD THAT:- The Riva Exports Ltd. Wherein the present appellant is working as Accounts Manager has supplied the films for job work under the cover of job work challan. This is more than sufficient compliance for transaction of the goods. Since Riva Exports Ltd.is not a manufacturer and not registered under Central Excise there is no charge by the revenue that Rivaa Export Ltd. is required to be registered. The supply of goods for job work was admittedly made under challan is in order.
Procedure of Notification 214/86-CE followed or not - HELD THAT:- Since M/s. Rivaa Export Ltd. is not registered and it is also a fact that they have not filed undertaking as required under Notification 214/86-CE, there is no obligation on M/s. Rivaa Export Ltd. to follow any procedure of notification 214/86-CE. In such case the entire responsibility to discharge Excise Duty if any leviable, is on M/s. MGM Metalizers Ltd. as has been held by Larger Bench of this tribunal in the case of THERMAX BABCOCK AND WILCOX LTD., THERMAX LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2017 (12) TMI 266 - CESTAT MUMBAI]. Therefore, if there was any non-payment of duty by MGM neither M/s. Rivaa Export Ltd. nor its employee can be made responsible.
The charge of abatement for evasion of duty by MGM has no basis against the present appellant. It is also observed that once M/s. MGM Metalizers Ltd. has discharged Service Tax there is no intention of evasion of duty. Even the department was aware the fact that MGM Metalizers are paying Service Tax on their activity which claimed by the department as manufacture. For this reason also no mala fide is proved against anyone.
It can be concluded that penalty was wrongly imposed against the present appellant - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 848 - CESTAT AHMEDABAD
CENVAT credit - input services - GTA services - case of appellant is that sale is on FOR basis, freight amount is inclusive in the assessable value - HELD THAT:- Since to decide the admissibility of the Cenvat credit certain facts have to be verified such as whether the sale is on FOR basis, freight is borne by the assessee, whether the freight is included in the assessable value on which the excise duty was discharged and no freight was recovered from the buyer separately, then only the appellant will be eligible for the Cenvat credit on GTA, the matter needs to be reconsidered by verifying the above facts on the basis of the records already submitted/ to be submitted by the appellant, if required - appeal allowed by way of remand.
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2019 (12) TMI 847 - CESTAT AHMEDABAD
CENVAT credit - input services - Insurance taken for the vehicles owned by the appellant Company - period March to November, 2010 - HELD THAT:- The issue is squarely covered by the Tribunal decision in the case of M/S. JAYESH ELECTRICALS PVT LTD VERSUS C.C.E. & S. T- VADODARA-II [2019 (10) TMI 1099 - CESTAT AHMEDABAD] where it was held that The period involved is prior to amendment of definition dated 01.04.2011 of inputs service i.e. January, 2009 to February, 2009 and thus Credit allowed on service of Insurance taken for the vehicles is allowed - credit allowed - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 846 - CESTAT AHMEDABAD
CENVAT credit - fake invoices - alleged supply of invoices without supply of goods - credit denied relying on various statements from which the Commissioner (Appeals) contended that M/s Shah Foils Ltd. only issued the invoices but the goods were not supplied - HELD THAT:- There is no dispute that the goods invoiced under eight invoices were transported and the same was received by M/s Sun Textile Engineer. The physical receipt of the goods have not been questioned in the entire case. The goods have been recorded in the books of M/s Sun Textile Engineers. The payment against the supplies were shown in the books, even though it is partly or otherwise. No investigation was carried out with M/s Sun Textile Engineer regarding the receipt of the goods, accounting in the books, use in the manufacture of final product and the clearance of final product on payment of duty, therefore, the said facts are not in dispute.
The finding given by the Learned Commissioner (Appeals) has no leg to stand - demand set aside - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 845 - CESTAT MUMBAI
100% EOU - alleged wrong calculation of Education Cess and Higher Education Cess - double taxation - demand of differential amount alongwith interest and penalty - HELD THAT:- The issue of levy of Edu. Cess and Higher Edu. Cess thrice time in computing the applicable customs duty as per provisions of Section 3(1) of the Central Excise Act, 1944 in relation to clearance made by a 100% EOU in DTA is no more res integra and covered by the Larger Bench of this Tribunal in the case of KUMAR ARCH TECH PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II [2013 (4) TMI 482 - CESTAT NEW DELHI] where it was held that the education cess and S&H cess would be chargeable only once under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 on the sum of basic customs duty and Additional customs duty.
Demand set aside - appeal dismissed - decided against Revenue.
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2019 (12) TMI 807 - CESTAT ALLAHABAD
CENVAT Credit - As per Revenue, since the repair of transformer does not amount to manufacture, the appellants were not entitled to avail the credit of duty paid on the transformer oil used for repair purposes - HELD THAT:- Admittedly the present order stands passed in the second round of litigation. When earlier the matter has travelled up to Tribunal and Tribunal in ACCURATE TRANSFORMERS LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD [2015 (12) TMI 66 - CESTAT NEW DELHI] had held that inasmuch as there was no proposal in the show cause notice for confirming and appropriating the already reversed cenvat credit, the same cannot be confirmed. As such, we fully agree with the Commissioner (Appeals) that confirmation of the same in remand proceedings was not appropriate.
Similarly as regards the second issue, it is noted that whatever duty was payable by the appellant was available as credit to their sister unit in which case extended period of limitation cannot be invoked as rightly held by Commissioner (Appeals) - Similarly the issue of availment of credit on the basis of the invoices which was not signed by the Authorized Signatory was already held by the Tribunal as rectifiable defect and not resulting in denial of cenvat credit to the assessee.
Appeal dismissed - decided against Revenue.
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2019 (12) TMI 805 - SC ORDER
100% EOU - Refund claim - destroying goods outside the factory premises without permission - Expired drugs / medicines - it was held by High Court that the substantial question of law is answered in favour of the appellant that the CESTAT committed fundamental error in construing the Exemption Notification as directory by condoning the lapse on the part of the assessee in destroying the manufactured goods outside the unit without permission of the concerned Authority.
HELD THAT:- The SLP need not be entertained - SLP dismissed.
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2019 (12) TMI 803 - ALLAHABAD HIGH COURT
Recovery of erroneously granted refund - unjust enrichment - finalization of provisional assessment - HELD THAT:- From the reading of provisions of Section 11A(1) of the Act, which provides for recovery of any duty of excise which has not been levied or paid or has been short levied or short paid or erroneously refunded. The recovery of such amount of excise duty can be made under Section 11A(1) irrespective of whether such non-levy or non payment or short levy or short payment or erroneously refund was on the basis of any approval, acceptance or assessment relating to rate of duty or on valuation of excisable goods under any other provisions of this Act or Rules made thereunder.
As in the present case, provisional assessment was finalised on 24.07.2015, the assessing authority recorded a finding that CA certificate dated 15.06.2015 certifies that no part of duty is recovered from the dealers/ distributors involved in the discount passed on to the dealers/ distributors, which indicates that assessee had not passed on the incidence of duty paid in proportion to the discount given to dealers/ distributors and, therefore, issue of unjust enrichment is a remote possibility and further, the order observed that duty to the tune of ₹ 17,89,42,303/- was passed on to the customers and duty deposited to the tune of ₹ 1,03,75,633/- was in excess - Further, an application being made by petitioner was adjudicated by Assistant Commissioner on 05.11.2015 wherein it was held that it was not a case of unjust enrichment and petitioner was entitled for refund. This order was also not challenged by revenue and the same attained finality.
Initiation of proceedings under Section 11A for recovery of excise duty - change of opinion - adjudication had been made by department making final provisional assessment and, thereafter, no appeal being filed challenging the said adjudication which having attained finality - HELD THAT:- As it is not in dispute that after provisional assessment order, the adjudicating authority passed an order for refund under Section 11B of the Act. Both the orders which were appealable and revisable under Section 35 and 35E were never taken to the higher forum by revenue and they attained finality.
Section 11B assumes great significance, as any order of refund of excise duty and interest is made only after the adjudication as envisaged under scheme of Section 11B. In the present case, petitioner-company had made an application for refund which was adjudicated on 05.11.2015 and it was directed to refund excise duty to tune of ₹ 1,02,75,633/- which was in excess. This order was never challenged by revenue in appeal and it attained finality - once the order of adjudication has been validly passed under Section 11B and a refund has been made on 05.11.2015.
Invocation of Section 11A of CEA - HELD THAT:- Section 35E and 11A operate in different fields and are invoked for different purposes, we are merely concerned in this case with the interplay between Sections 11A and 35E. We are also concerned with what happened in the form of an adjudication under Section 11B. What happens in a case wherein adjudication takes place under Section 11B and authorities do not take recourse available to them, whether after having allowed adjudication under Section 11B to attain finality, was there any remedy available to department at all under Section 11A to proceed - Thus, the department, once the adjudication has taken place under Section 11B, cannot proceed to recover on the basis of “erroneous refund” under Section 11A so as to enable the refund order to be revoked, as the remedy lied under Section 35E for applying to the Appellate Tribunal for determination and not invoking Section 11A.
The issuance of show-cause notice dated 17.08.2017 and, thereafter, order dated 30.11.2017 passed by respondent authority for repayment of refund pursuant to orders under Section 11B are unsustainable - Petition allowed.
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2019 (12) TMI 790 - CESTAT ALLAHABAD
SSI Exemption - clubbing of clearances - job-work - appellant took a categorical stand that they were getting the goods manufactured on job work basis from M/s Dimond Steel and produced the relevant documents - HELD THAT:- The entire purpose of adjudication is to come to the finding between the allegations and proposals made by the revenue and the defence, pleas and contention raised by the assessee. If the entire documents are required to be produced at the time of investigation itself and are blocked from producing at the time of adjudication, the entire purpose of adjudication gets defeated. The assessee is within his right to produce such defence documents, which he considers relevant for countering the allegations of the revenue.
It is only after the allegations are revealed in the show cause notice, an assessee would come to know about the same and would submit his defence. As such, to observe that such defence should have been submitted before the investigating authorities, when the show cause notice was not even issued, is not only against the settled principals of law but are perverse observation also.
Matter remanded to adjudication authority for fresh adjudication after giving a proper opportunity to the appellants to put forth their case - appeal allowed by way of remand.
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2019 (12) TMI 788 - CESTAT KOLKATA
Maintainability of proceedings - Area Based Exemption - Benefit of N/N. 32/99 and N/N. 8/04-CE dated 21.01.2004 - branded chewing tobacco in the brand name of ‘Tulsi’ prior to 22.08.2001 - extension of existing unit - dispute in the instant case is related to the Shed No.17 located in the same Bamunimaidan Industrial Estate and Appellant’s claim that this shed is an extension of its existing unit located at Shed No.6 & 7 in the same industrial Estate.
HELD THAT:- CBEC vide Circular No.960/03/2012-CX-3 dated 17.02.2012 has clarified that new plot if added should not affect the benefit. Further vide Circular No.939/29/2010-CX dated 22.12.2010 clarified that addition of new brands would also not mean denying the benefit. Even, if the Circular is modified subsequently against the interest of the assessee, the modification applies only prospectively
The proceedings are not maintainable as per Section 72(6) of the Finance Act, 2011. Moreover, since IAC has examined and re-done the whole exercise again as mandated by Section 72 of the Finance Act, 2011 and did not raise any objection on eligibility, the eligibility questioned in SCN had become redundant.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 787 - CESTAT KOLKATA
CENVAT credit - input - grinding wheel used for the finishing of their final products - HELD THAT:- The issue decided in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS BOTLIBOI & CO. LTD. [2009 (7) TMI 727 - GUJARAT HIGH COURT] where it was held that the grinding wheels are definitely parts of the grinding machine used by the respondent assessee and they have to be considered as inputs under Rule-57A of the Central Excise Rules.
By respectfully following the aforesaid decision of the Hon’ble High Court, the impugned Order is set aside - credit allowed - appeal allowed - decided in favor of appellant.
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2019 (12) TMI 786 - CESTAT ALLAHABAD
Method of Valuation - section 4 or section 4A of Central Excise Act - Set Top Boxes for television sets under the brand name of TATA SKY - whether the duty of Central Excise discharged on MRP of ₹ 1499/- could be accepted for discharge of duty under section 4A of the Excise Act?
HELD THAT:- In exercise of the powers conferred by sub-section (1) and (2) of section 4A of the Excise Act, the Central Government issued a Notification dated 1 March, 2006 which was subsequently amended by Notification dated 24 January, 2008 by which Set Top Boxes for television sets were included as at Serial. No. 89B.
It is not in dispute that the Respondent was paying Central Excise duty on the various models of Boxes manufactured and cleared on the basis of MRP printed on the boxes in terms of section 4A of the Excise Act after availing abatement as applicable from time to time with effect from 25 January, 2008. Prior to this date, the Respondent was paying Central Excise duty of the boxes on the transaction value under section 4 of the Excise Act - The Commissioner found that the Department could not substantiate that the goods in question were sold to ultimate consumers at a price that was higher than the printed MRP. While arriving at this finding, the Commissioner observed that none of the three grounds contemplated under section 4A of the Excise Act on account of which the Department could ascertain the retail price existed. In fact the Commissioner also examined two invoices which clearly indicated that the boxes were sold at ₹ 1,499/- by M/s TATA SKY Ltd. No evidence was produced by the Department to establish that the Boxes were sold to ultimate customers at a price higher than the MRP.
When the conditions set out in sub-section (4) of section 4A of the Act for ascertaining the retail sale price of the goods were not satisfied, the Department cannot be permitted to ascertain the sale price of the goods. The MRP indicated in the Boxes would alone form the basis for determining the levy of Central Excise duty.
Appeal dismissed - decided against appellant.
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2019 (12) TMI 784 - CESTAT KOLKATA
CENVAT Credit - recovery of irregular credit belonging to another unit of the appellant alongwith interest and penalty - period 2013-14 and 2014-15 - whether the Appellant is required to again reverse the full amount of Cenvat credit on account of ineligibility of Cenvat credit availed by the Appellant during the period in which the reversal of Cenvat credit as per the procedure laid down Rule 6(3) (b) of the Cenvat Credit Rules, 2004 for proportionate reversal of Cenvat credit during the said period has already been done by the Appellant?
HELD THAT:- The Appellant has produced a CA certificate showing the reversals made for the FY 2014-15 on account of following the procedure as per Rule 6(3) of the Cenvat Credit Rules, 2004. Also a verification report as submitted by the Range office of the Appellant is placed on record which shows that the Appellant has actually reversed Cenvat credit following the said process for FY 2014-15 - From the above noted facts, it can be found that the Appellant cannot be asked to pay more than what it has actually availed.
Appellant cannot be asked to reverse more than the actual Cenvat credit availed by the Appellant and based on the CA certificate and Range report there is no doubt as to the fact that the Appellant has actually followed the process of proportionate reversal under Rule 6(3) of the Cenvat Credit Rules, 2004 - demand set aside.
Penalty U/s 11A - HELD THAT:- The disputed amount had been paid before the issuance of the show cause notice, and the entire amount was paid alongwith interest. Therefore, the payment of duty in the instant case should have been treated as payment of central excise duty under Section 11A (2B) of the Act and the show cause notice should not have been issued.
Penalty u/s 11AC - HELD THAT:- The Revenue has not been able to prove beyond reasonable doubt the presence of fraud, collusion, willful misstatement or suppression of facts on the part of the appellant. Therefore, imposition of penalty under Section 11AC of the Act is unwarranted.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 719 - SC ORDER
Application to Settlement Commission - recovery of short paid duty - Clandestine removal - HELD THAT:- There are nothing to entertain the Special Leave Petition under Article 136 of the Constitution of India.
SLP dismissed.
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