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2015 (7) TMI 583 - CESTAT MUMBAI

2015 (7) TMI 583 - CESTAT MUMBAI - TMI - SSI Exemption - Penalty u/s 11AC - Invocation of extended period of limitation - Held that:- Goods so called as cartons, wallets or catch covers are similar in nature and are meant for packaging of different products. We have also gone through the heading 4817 as also 4819. We find that heading 4817 covers wallets of paper or paperboard containing an assortment of paper stationery. The goods manufactured by the appellant are primarily meant for packaging .....

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be chargeable to duty and the same would be required to be excluded from the computation of duty. On this issue, the matter is remanded to the Commissioner.

Appellant has not produced any documents even before this Tribunal so as to indicate that they have the duty paying documents. However, in the interest of justice, we are giving two months' time from today to produce the duty paying documents used in the manufacture of dutiable cartons, wallets, catch covers etc. and correlate t .....

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e not claiming cenvat credit and requnatification done.

Keeping in view the fact that different copies of the invoices were manipulated, it is a case of fraud and extended period of limitation is correctly involved and is upheld. Penalty under Section 11AC and interest are also upheld. However, the amount of duty, interest and penalty will require to be requantified.

The role of Shri Subhash Palande who was the managing director and was looking after the day-to-day work, ha .....

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manufactured by appellant No. 1 and they have connived so as to evade payment of excise duty. The penalties have been correctly imposed on them. - Decided party in favour of appellants. - Appeal No. E/4006 to 4010/05-Mum - Dated:- 13-3-2015 - P K Jain, Member (T) And Ramesh Nair, Member (J),JJ. For the Appellant : Shri R V Shetty, Adv. For the Respondent : Shri Rakesh Goyal, Additional Commissioner (AR) ORDER Per: P K Jain: Brief facts of the case are that the main appellant is engaged in the ma .....

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e the impression that the goods being cleared are exempt from payment of duty. Mainly, the first and second coy of the invoice would indicate cartons while third and fourth copy would indicate folders. In addition to above manipulation, it was also found during the investigation that some of the goods manufactured by the main appellant were shown as if the same are manufactured by M/s. Shital Enterprises and M/s. Sonali Graphic which are another two firms controlled by the same family. After inv .....

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provide the copies of the relied upon documents. Subsequently, on 22.6.2005, the relied upon documents were provided to all the five appellants and thereafter another personal hearing was fixed on 20 th July 2005 and the appellants did not appear for the hearing but again wrote that the documents were not provided. Keeping in view the fact that all the relied upon documents were provided, the case was adjudicating by the original authority. In appeal also, same grievance is made. In view of the .....

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ne Shri Santosh S. Inarkar on behalf of all the five appellants and the acknowledgement very clearly states that he has received legible copies of all the documents relied upon in the show cause notice. Copy of the acknowledgement was handed over to the counsel for the appellant and was thereafter requested to indicate which are the documents that are required by them. The learned counsel could not elaborate on any document that is required by them. We also note that the appellant in their lette .....

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ng the final statements of Shri Subhash Palande. 3. Learned counsel thereafter argued that some of their goods are classifiable under Heading 4817 as wallets and would therefore be chargeable to nil rate of duty. He further submitted that in addition to the cartons and catch covers, they were also manufacturing inserts which are nothing but the leaflets and the same would not be classifiable under 4819 but under Chapter 49 and would be chargeable to nil rate of duty. The learned counsel also sub .....

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submitted that in view of his further submissions, the duty liability will come down. The learned counsel also submitted that in case they are required to pay the duty, they may also be given the benefit of cenvat credit on the inputs. The learned counsel also submitted sample copies of the products manufactured by them. 4. The learned AR, on the other hand, submitted that cartons, wallets, catch covers are similar in nature and are meant to keep the goods such as pencils, pharmaceutical goods a .....

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r packaging of different products. We have also gone through the heading 4817 as also 4819. We find that heading 4817 covers wallets of paper or paperboard containing an assortment of paper stationery. The goods manufactured by the appellant are primarily meant for packaging of condoms, pencils, pharmaceutical items. These will therefore not be covered by the description given in heading 4817. These would be clearly covered under heading 4819.19 and would be chargeable to duty. 5.1 We also note .....

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lders or some other description which would incorrectly describe the goods and make them classifiable under a heading which is exempt from payment of excise duty. 5.2 We also note that the Revenue had collected the copies of the original and duplicate invoices from various customers of the appellants and also triplicate and quadruplicate copies from the appellants themselves and has tabulated the same in Annexures II(B), II(C), II(D) and II(E). These annexures list out description given in the o .....

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etailed in Annexure II (F) and II(G) were produced by the main appellant. However, the same were shown as if these are manufactured by appellant Nos. 3 &4 viz. M/s. Sonali Graphic and M/s. Shital Enterprises. None of these two firms were in the field of manufacturing cartons, wallets etc. and had no machinery to manufacture the same. The same were manufactured by the main appellant and these are therefore required to be included in the value of clearances by the main appellant. 6. We, howeve .....

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erts. An insert can be a leaflet or some other item of cardboard. In the event the inserts are nothing but printed leaflets, then these would not be chargeable to duty and the same would be required to be excluded from the computation of duty. On this issue, the matter is remanded to the Commissioner. The appellants will produce copies of the work order, agreement, invoices etc. so as to support their claim that inserts are nothing but printed leaflets alone. The Commissioner, after going throug .....

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uments even before this Tribunal so as to indicate that they have the duty paying documents. However, in the interest of justice, we are giving two months' time from today to produce the duty paying documents used in the manufacture of dutiable cartons, wallets, catch covers etc. and correlate the same (with grammage etc.) to their final products. Such documents will be produced before the jurisdictional Commissioner. Thereafter the Commissioner will examine the claim of the appellant and in .....

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