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2015 (9) TMI 1148 - ANDHRA PRADESH HIGH COURT

2015 (9) TMI 1148 - ANDHRA PRADESH HIGH COURT - 2015 (328) E.L.T. 6 (A. P.) - SSI exemption - production of pharmaceuticals as recorded in the RG1 register was not tallying with the production recorded in the laboratory reports - Duty demand u/s 11D - Held that:- Commissioner has assumed that in respect of all the clearances, the appellant has collected Excise Duty. If the department makes the allegation that the appellant had collected money representing Excise Duty, then the burden is on the R .....

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nt-assessee has collected money representing excise duty rests on the Revenue, but the order-in-original does not disclose that the Department has discharged the burden of proof, as such, the Tribunal was right in remanding the matter to the original authority to reconsider and decide the case on merits. Further, it is to be noticed that during the pendency of this appeal, the respondent-assessee is said to have paid certain amounts which fact is not denied by the Department. Further, in the Ord .....

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this fact has not been controverted by the Department. - Decided against Revenue. - C.E.A. No. 15 of 2006 - Dated:- 29-7-2015 - G. Chandraiah And Challa Kodanda Ram, JJ. For the Appellant : Sri V. Gopala Krishna Gokhale, SC for Customs and Central Excise For the Respondent : Sri C. V. Narasimham JUDGMENT ( Per Hon ble Sri Justice G. Chandraiah ) This Central Excise Appeal under Section 35G of the Central Excise Act, 1944 as substituted by the Finance Act, 2003 (for brevity the Act) is filed at .....

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Excise from their customers and not deposited the same to the Central Government, in contravention of the provisions of Section 11D of the Central Excise Act, 1944? ii) Whether the Hobble CESTAT is right in holding that the burden of proving collection of amounts representing the duty of Excise from their customers by the Party, is on the Revenue, when the party has intentionally not produced certain commercial invoices? iii) Whether the Hobble CESTAT is right in not considering clear-cut evide .....

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ect of other customers intentionally? v) Whether the Hon ble CESTAT is right in remanding the matter when facts mentioned in the Show Cause Notice are admitted by the appellant The respondent-company is a manufacturer of pharmaceuticals falling under CH.S.H.No.3003.10 and 3003.20 of schedule to the Central Excise Tariff. They have availed SSI exemption based on value of clearances during the years 1998-99 to 2001-2002 under relevant notifications. In the investigation, it was found that the prod .....

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ing the same to the aggregate value of clearances. Hence, a show cause notice dated 22.03.2002 was issued to the respondent-assessee pointing out various discrepancies and proposing demand of the duty amount including other proposed recoveries. The appellant - Commissioner of Customs and Central Excise, who is the adjudicating authority, vide Order-in-Original dated 10.01.2003, confirmed the demand amounting to ₹ 39,74,576/- for the period 1998-99 to 2001-2002 (up to August 2001) under Sec .....

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unal, the Revenue has instituted the present appeal. Sri V. Gopala Krishna Gokhale, learned Standing Counsel for Customs and Central Excise appearing for the appellant has submitted that even though the Department placed sufficient material before the Tribunal, it erroneously passed the impugned Final Order without considering the material on record, as such, the same is liable to be set aside. Sri C.V.Narasimham, learned counsel for the respondent- assessee has submitted that the Tribunal, afte .....

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e appellant is allowed in view of the case-laws cited. Therefore, we are taking up the hearing of the case without insisting on pre-deposit. As regards the merits of the case, it appears that the Commissioner has assumed that in respect of all the clearances, the appellant has collected Excise Duty. If the department makes the allegation that the appellant had collected money representing Excise Duty, then the burden is on the Revenue to prove the same. In view of this position, the Order-in-Ori .....

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