TMI Blog2015 (10) TMI 1682X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed. Since the appellant has not deposited the said amount, the appeal is not maintainable. However, in the interest of justice, the appellant is directed to pay the said amount within a period of four weeks - Partial stay granted. - Appeal E/85542/15-Mum - - - Dated:- 5-6-2015 - P K Jain, Member (T) And S S Garg, Member (J),JJ. For the Appellant : Mr S S Gupta, CA For the Respondent : Mr Hitesh Shah, Commissioner (AR) ORDER Per: P K Jain: The appellant was issued a show cause notice relating to maintainability of the appeal filed by them in view of the amended provisions of Section 35F of the Central Excise Act, i.e. the appellant has not deposited 7.5% of the disputed demand of duty. 2. The case was heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of no relevance. As far as another demand of ₹ 1,18,45,107/- is concerned, the learned Commissioner (AR) submitted that the appellant has been doing trading activity in a big way and their manufacturing activity is only miniscule and as held by this Tribunal in Mercedes Benz - Appeal No.E/370, 456, 385/11-Mum E/1019/12-Mum, before 2011 the value of the trading goods has to be taken. Even on that criteria, the demand will be substantial. He submitted that as per Section 35F, the appellant is required to deposit an amount equivalent to 7.5% of the duty demanded and it is clear from the order that only an amount of ₹ 3,44,773/- can be taken into account for the said purpose. 4. We have considered the submissions. Section 35F a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation.- For the purposes of this section duty demanded shall include,- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004. 5. We further find that the impugned order reads as under:- ORDER (i) I disallow the CENVAT Credit of ₹ 5,63,66,047/- (Rupees Five Crores Sixty-three Lakhs Sixty-six Thousand Forty-seven only) availed and utilised by M/s. Visen Industries Ltd., K-30, 31 32, MIDC Industrial Area, Tarapur, Boisar, Dist. Thane - 401506, during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. (vi) I impose penalty of ₹ 70,00,000/- (Rupees Seventy Lakh only) upon Shri Vijay S Nair, Managing Director of aforesaid M/s Visen Industries Ltd, under rule 26(2)(ii) of the Central Excise Rules, 2002. It will thus be seen that as far as the appellant is concerned, a demand of ₹ 6,82,11,154/- has been confirmed. Further, an amount of ₹ 3,44,773/- only has been appropriated. 6. We find force in the contention of the learned Commissioner (AR) that the purported reversal of credit of ₹ 5,63,66,047/- cannot be considered, as the appellant has issued invoices and their customers would have already taken credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
