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M/s. S.V. Mestry Engg. Works Versus Commissioner of Central Excise, Mumbai

2015 (11) TMI 665 - CESTAT MUMBAI

Export of goods by SSI units against form H - Fraudulent availment of SSI Exemption - Notification No. 8/2003 dated 1/3/2003 - Floating of dummy unit - Clubbing of clearances - Held that:- Appellant has not disputed the issue of clubbing of both units before adjudicating authority. - Appellant have produced all the records such as form ‘H’ and other sales documents before adjudicating authority and considering those documents, original authority has extended the benefit of deduction of value of .....

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r, as original authority has only followed the Board Circular in correct perception and allowed the deduction of value of exported goods from the aggregate value of both units. - Impugned order is set aside - Decided in favour of assessee. - APPEAL NO. E/281/11-MUM - Final Order No. A/1462/2015/WZB/SMB - Dated:- 7-5-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri. V. K. Shastri, Asst. Commissioner(A.R.) ORDER Per : Ramesh Nai .....

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thereof falling under Chapter Sub Heading No. 84224000 & 84229090 respectively of the First Schedule to the Central Excise Tariff Act, 1985. Show cause notice was issued alleging that the appellant is fraudulently availing SSI exemption of Notification No. 8/2003 dated 1/3/2003 as they have floated dummy unit namely M/s. Shree Swami Samarth Engineering in the name of his wife Smt. Sarika S. Mestry. In the adjudication, the adjudicating authority has though held that the both the units shoul .....

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e of goods claimed to have been exported through merchant exporter. Ld. Commissioner(Appeals) accepting contention of the Revenue set aside the order of the original authority and confirmed the demand of ₹ 4,83,864/-, equal amount of penalty was also imposed. Aggrieved by the impugned order the appellant is before me. 2. Ms. Padmavati Patil, Ld. Counsel for the appellant submits that adjudicating authority has correctly considered and reduced value of goods cleared for export through merch .....

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the Commissioner(Appeals) has denied deduction of export value on the ground that Board circular dated 26/5/1996 not applicable, however Circular dated 25/7/2002 is applicable as present case is covered by the board circular dated 25/7/2002. It is her submission that Board circular dated 26/5/1996 as well as Board Circular dated 25/7/2002 prescribed that form H can be accepted as proof of export and both circular are in force and has not been withdrawn therefore Ld. Commissioner(Appeals) findin .....

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record. 5. The appellant has not disputed the issue of clubbing of both units before adjudicating authority. They only made submission that value of goods exported through merchant exporter should be reduced from total aggregate value of both units and thereafter if any demand arises on over and above threshold limit of aggregate value of one crore, only on that demand can be confirmed. Appellant have produced all the records such as form H and other sales documents before adjudicating authority .....

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ly allowed deduction of value of goods exported through merchant exporter. Findings of the original authority is reproduced below: 9. I have gone through records of the case and the submission made by the assessee. I have also perused the exhaustive case laws sited as furnished by the assessee in their written submission, also perused case laws viz CCE Bhopal V/s Birla Erricson Optical Ltd. 2007(212) E.L.T. (Tri-Del.) & CCE V/s Shayona Enterprises 2008 (230) E.L.T. (Tri-Ahmd.). I have examin .....

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he financial year 2005-06 & 2006-07. 9a. I have carefully gone through the submission of assessee regarding the export made by M/s S. V. Mestry Engineering Works & M/s Shri Swami Samarth Engineering through their merchant exporters viz M/s KDR Industries & M/s Sulpha International. The value of the said exports have not been excluded from the value of home clearances, the assessee in there said contention have submitted form H in respect of there above merchant export. Therefore, in .....

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- (Basic ₹ 28,980 + Edu. Cess ₹ 580/-) for the financial year 2005-06. The value of merchant export clearance for the financial year 2006-07 as per the form H submitted as proof of export the total value come to ₹ 24,09,822/- after deducting the same from their cum duty Value for the financial year 2006-07 it comes to ₹ 83,82,181/- which is below the SSI limit prescribed hence there is no duty liability for the said financial year. 9b. The assessee has not argued regardin .....

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able value comes to ₹ 1,81,122/-. Hence, duty to be recoverable of ₹ 29,560/- from the assessee. For the financial year 2006-07 excluding merchant export clearance, the total value of clearance of the both the companies remain below of ₹ 1 crore. 9 c. I find that since assessee have to pay demand of duty during the financial year 2005-06 of ₹ 29,560/- they are liable for penalty under sec. 11AC equal to demand of ₹ 29,560/-. 9d. Regarding interest under sec. 11AB of .....

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