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2015 (9) TMI 356

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..... of the discussion from the order of the Commissioner is extracted as well - Decision of tribunal reversed - Demand confirmed - Decided in favor of revenue. - Civil Appeal No(s). 5820-5821/2005 - - - Dated:- 23-7-2015 - Mr. A.k. Sikri and Mr. Rohinton Fali Nariman, JJ. For the Petitioner : Mr. Y.P. Adhyaru, Sr.Adv., Mr. Subas C. Acharya,Adv., Ms. Nisha Bagchi, Adv., Ms. Sunita Rani Singh, Adv., Mr. B. Krishna Prasad, Adv., Ms. Pooja Sharma, Adv. For the Respondent : Mr. S.K. Bagaria, Sr.Adv., Mr. Ajit Singh, Adv., Mr. Rajesh Kumar, Adv., Mr. R.K. Srivastava, Adv. ORDER The respondents in these two appeals are M/s. Satyam Technocast and M/s. Prince Time Industries. The proceedings against these two respondents (herei .....

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..... much lower quantities/value than the actual? The findings on this issue were based on the statements of the aforesaid two persons accepting the two bogus and dummy firms and on that basis it was concluded that the goods were cleared on fictitious invoices showing lower quantities and value. Another relevant issue framed was issue No. IV, namely, whether M/s. Satyam Technocast could not be considered to be the manufacturer of excisable goods which are alleged in the show cause notice to have been manufactured by them? The defence of M/s. Tecnocast was that they were only the traders of hardware items. This defence has not again been accepted on the basis of statements of the aforesaid two persons and the finding arrived at by the Comm .....

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..... nocast merged in such a way during the period relevant to this show cause notice that both these units are inseparable and the clearances made by both these units have to be clubbed on the ground that both these units belong to the same person i.e. Shri Somesh Malik during the relevant period. The facts and figures of this case establish that these units did not have separate legal entity even though M/s. Pioneer Hardware Industries was a partnership firm till 16-07-2001 with Shri Somesh Malik (Proprietor of M/s. Satyam Technocast) evidence ownership interest in the partnership and also managing all its affairs during the period relevant to the instant SCN. The last issue i.e. issue NO.XI pertains to the duplication of duty demand in .....

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..... s.1,16,064 Total duplication : Rs.1,74,860 Clearance Value after deducting duplication (a-b) : Rs.69,90,002 From 16-7-01 to 31-3-02 (Annexure - D of SCN) (a) Total clearance (OE +Alpa + PNR + SAT) : 2,07,14,634/- (b) Duplications : (i) 27 invoices in the name of M/s Alpa Hardware : Rs.3,02,325/- (ii) 33 invoices of M/s .....

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..... Total : Rs.3,45,391 Clearance Value after deducting duplication (a-b) : Rs.1,32,47,426 Duty Liability for 2002-03 : (a) for first 100 lakhs : Nil (as per Not. No. 08/2002) (b) On rest : Rs.32,47,426/- VALUE ON WHICH DUTY IS TO BE CHARGED : Cum-duty value permissible deductions / 1 + rate of duty = 32,47,426 / - 1.16 = ₹ 27,99,505 Duty to be recovered (2002-03) : ₹ 27,99,505 / - X 16% = & .....

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..... d sixty seven only), as against M/s. Satyam Technocast and Shri Somesh Malik jointly, under section 11 A of the Central Excise Act, 1944, alongwith interest under Section 11 AB of the said Act. I also impose a penalty equal to the amount of duty confirmed, on them under section 11 AC of the said Central Excise Act, 1944. Both the respondents filed appeals before the CESTAT against the aforesaid order of the Commissioner. The Tribunal vide the impugned judgment dated 11.3.2004 has set aside the order of the Commissioner. On going through the order of the Tribunal we find that the prime reason given by the Tribunal in support of its order is that there is hardly any evidence on record to prove the allegations made against the two res .....

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