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2015 (10) TMI 1361 - CESTAT AHMEDABAD

2015 (10) TMI 1361 - CESTAT AHMEDABAD - 2016 (339) E.L.T. 427 (Tri. - Ahmd.) - Valuation - related person - mutuality of interest - Invocation of extended period of limitation - Held that:- So far as the appeal filed by the Revenue regarding extended period invocable is concerned, it is observed from the order passed by the First Appellate Authority that the demand for the extended period was not only confirmed on the basis of Apex Courtís judgment in the case of M/s Nizam Sugar Factory Ltd (200 .....

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under proviso to Section 11A cannot be invoked and also that no penalty under Section 11AC of the Central Excise Act, 1944 are imposable upon the assessee. - The concept of revenue neutrality for not confirming the demand cannot be raised for the period within the limitation. If the duty is payable by the Appellant is paid by the Appelalnt, the credit of the same can be taken by M/s Mahalaxmi Exports Ltd. - Decided against assessee. - Appeal No.E/539,961/2007 - Order No.A/10503-10504/2015 - Dat .....

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irst Appellate Authority to be within the period of limitation. The First Appellate Authority also set aside the equivalent penalty imposed upon M/s Mahalaxmi Fabrics Mills Ltd. Revenue has filed Appeal No.E/961/2007 with respect to setting aside of demand on time bar issue and also setting aside of the penalty. Appeal No.539/2007 has been filed by M/s Mahalaxmi Fabrics Mills Ltd on the ground that the demand is not sustainable on the ground that M/s Mahalaxmi Fabrics Mills Ltd and M/s Mahalaxmi .....

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voked by the Revenue only in the second Show Cause Notice for the earlier period when the first Show Cause Notice did not invoke extended period. It was also his case that the judgment of Hon ble Supreme Court in the case of M/s Nizam Sugar Factory [2006 (197) ELT 405 (SC)] will not be applicable to the facts of the present case. It was strongly argued by the learned Authorised Representative that extended period under Section 11A and penalties under Section 11AC of the Central Excise Act, 1944, .....

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cate that any excess duty paid by his client would have been admissible as CENVAT credit to M/s Mahalaxmi Exports Ltd who are exporting the goods. That M/s Mahalaxmi Exports Ltd are also availing rebate facility in addition to being entitled to deemed credit on the grey fabrics. It was his case that his client would have gained much more in terms of credit and rebate and there cannot be any intention to evade payment of duty as argued by the Revenue in this appeal. 4. Heard both the sides and pe .....

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sed by the First Appellate Authority is reproduced below:- 11. In that view of the matter, I find that the demand pertaining to the period 2001-02, 2003-03, is hopelessly barred by limitation as it was raised as late as on 02.01.2006. I do hold that raising of demand, after more than thirteen months of first demand, on charge of suppression, mis-declaration that too of prior period (01-02 & 02-03), in view of Hon ble S.C. judgment in Nizam Sugar case as reported at 2006 (197) ELT 465 (SC) wa .....

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had to be treated as provisional. The costing could be arrived at the end of the year and till that as prescribed in the law such transactions has to be treated on provisional basis only. Since the financial year closed on 31.03.2004, for 03-04 and on 1.4.05 for 04-05, from those dates the one year period for raising demand was available. In that view of the matter, both the demand i.e. dt.30.11.2004 and dt.06.01.2006 are very much in time. Thus, the demand for ₹ 20,528/- and for ₹ 9 .....

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