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2015 (11) TMI 1345 - CESTAT MUMBAI

2015 (11) TMI 1345 - CESTAT MUMBAI - TMI - Duty demand - MODVAT Credit - Adjustment of tax - Held that:- While issuing the demand notice, payment of ₹ 20,128/- through PLA as also modvat credit of ₹ 11,40,188/- has already been taken into consideration. The demand in respect of the said clearances amounting to ₹ 9,41,109/- has been arrived after extending the said benefit. Thus, we agree with the contention of the Revenue that this has resulted in the adjustment of the paid amo .....

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ry of the said amount. The respondent-assessee has taken the credit of the said amount only once. We, therefore, do not see there is any adjustment of modvat credit against duty payable.

Entire ship does not consist of M.S. alone and the Commissioner has given a deduction of 10% towards erections and fitments for constructing ship, cabin crew etc. The Revenue is submitting that in the calculation, a benefit of 326.740 MT of firewood has already been given. Firewood and erection and fi .....

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partly in favour of Revenue. - APPEAL No. E/669/05-Mum - Dated:- 30-4-2015 - Mr. P.K. Jain, Member (Technical) And Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri Ashutosh Nath, Assistant Commissioner (AR) For the Respondent : Shri A.D. Maru, Advocate ORDER Per: P.K. Jain This is an appeal filed by the Revenue. The respondent-assessee was engaged in the ship-breaking business. A case was made against the respondent-assessee which resulted in the issuance of a show cause notice date .....

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s Twenty Eight Lakhs Seventy Eight Thousand One Hundred Thirty Eight only) on MS scrap obtained from ship breaking manufactured & cleared clandestinely by M/s. A.K. Udyog, Nallasopara under first proviso to sub section (1) of Section 11A of Central Excise Act, 1944 as shown above for the period from 28.11.1998 to 09.04.1999 & order recovery under Section 11A(2) ibid after adjusting, however, the amounts paid by the assessee towards duty & the Modvat credit available to them; (ii) I a .....

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y is imposed under Section 11 AC ibid; (iii) I also order recovery of interest at the appropriate rate on the amount of duty determined to be leviable & recoverable under the provisions of Section 11AB of CEA 1944 against the assessee; (iv) I impose a penalty of ₹ 1,50,000/- (Rupees One Lakh Fifty Thousand only) on Shri Pankaj Kumar Agrawal, Supervisor & authorized signatory, ₹ 50,000/- (Rupees Fifty Thousand only) on Suresh Vithal Chogule, Excise Clerk, & ₹ 1,50,00 .....

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Amit Kumar Agrawal & ₹ 6,00,000/- (Rupees Six Lakhs only) on M/s. Maharashtra Sai Udyog for aiding and abetting the assessee & its Proprietor in their day-to-day working & also for receiving the MS scrap without duty paying documents & not recording the receipts, thereby facilitating the evasion of huge amount of Central Excise duty. However, I refrain from imposing penalty on M/s. Vishwas Steel Limited, Tarapur, Dist: Thane as no positive evidence has been brought in the .....

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he said amount, an amount of ₹ 28,78,138/- was confirmed. The Revenue has come in appeal against the said order and the grounds of appeal are stated as under:- 7.1 The adjudicating authority observed that the duty payable by the assessee works out to ₹ 5648791/-, after taking into consideration the duty paid by TR6 Challan in PLA and also Modvat credit. The adjudicating authority confirmed the duty of ₹ 2878198/- and accordingly ordered for penalty under Section 11 AC and inter .....

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ved that the assessee are eligible for Modvat credit against payment of CVD, the same is disallowed by OIO dated 09.10.01, passed by the Additional Commissioner, Central Excise, Mumbai-lll. As such the adjustment of Modvat credit against duty payable is not correct. 7.3 The adjudicating authority also allowed 10% deduction towards erecting and fitment for constructing the Ship's cabin crew etc by observing it as an accepted fact that entire ship of 5960 MT was not consisting of M.S. In this .....

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00,000/- paid by the assessee. only from the confirmed amount. The adjudicator should have ordered for penalty and interest accordingly. 3. The learned AR submitted that the Commissioner has incorrectly extended the benefit of ₹ 20,128/- as paid through PLA and modvat credit of ₹ 17,50,525/-. It was submitted that out of the said amount of ₹ 17,50,525/-, an amount of ₹ 11,40,188/- was already utilized by the respondent-assessee for computing the duty as per Annexure B(I) .....

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ment cannot be given again after computing the duty liability. (This duty liability already excludes the duty paid). This has resulted in the adjustment of the paid amount twice. 3.1 The second submission of the learned AR was that the department has already denied the modvat credit against payment of CVD vide order-in-original No. 45/KPS/2001 dated 9.10.2001 passed by the Additional Commissioner. Further, the respondent assessee has filed appeal against the said order-in-original and the Commis .....

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e time granted, the appeal will stand dismissed and the Commissioner s order under challenge will stand confirmed. The assessee has not paid the said amount. 4. The learned counsel for the respondent-assessee has orally stated that they had filed an appeal against the said order before the Hon ble High Court and the Hon ble High Court has dismissed the same. However, he was not in a position to produce the copy of the High Court order. It was also submitted that so far they have not paid the sai .....

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be increased correspondingly. 6. The learned counsel for the respondent-assessee submitted that their bill of entry was provisionally assessed by the Customs, which is not finalized even today. It was further submitted that the respondent-assessee has only imported one ship and is no more in the ship-breaking business. On query from the Bench regarding the details given in the impugned order, he had nothing to state. 7. Heard the rival submissions. On carefully going through annexure B(I) of th .....

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