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2015 (10) TMI 1682 - CESTAT MUMBAI

2015 (10) TMI 1682 - CESTAT MUMBAI - TMI - Maintainability of the appeal - Waiver of pre deposit - Section 35F - Mandatory pre deposit - Held that:- 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 the same. We find these issues will have to be gone into detail at the time of final hearing and cannot be decided at this stage. - keeping in view the provisions of Section 35F as en .....

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r (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 at length. The learned counsel for the appellant's submission was that the demand consists of two po .....

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pted/trading activity. He submitted that they have already reversed ₹ 3,44,773/- as a proportionate credit between the dutiable and exempted/trading goods. 3. The learned Commissioner (AR), on the other hand, submitted that it is clear from the order that what is being demanded is the cenvat credit availed by the appellant without receiving any goods in their factory and manipulating the documents so as to show that the goods have been received in the factory. He further submitted that the .....

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R) 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 .....

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uty or duty and penalty are in dispute, or penalty, where such penalty is in dispute-in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B , unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalt .....

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es ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before 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 th .....

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ules, 2004 read with section 11A(10) [earlier section 11A(2)] of the Central Excise Act, 1944; (ii) I determine an amount of ₹ 1,18,45,107/- (Rupees One Crore Eighteen Lakhs Forty-five Thousand One Hundred Seven only), under Rule 14 read with Rule 6(3)(i) of the Cenvat Credit Rules, 200-1 in [reading of Section 11A(10) and Station 11AA of the Central Excise Act, 1944; as payable by M/s. VIsen Industries Ltd., K-30, 31 & 32, MIDC Industrial Area, Tarapur, Boisar, Dist Thane - 401506; (i .....

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