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M/s Vardhman Sales Agency, Shri Amit Kumar Sharma, Accountant, M/s V.K. Metals Works, M/s Namo Alloys Pvt. Ltd., Shri Neeraj Kumar Jain, Director, M/s Upkar Goods Transport Co. Pvt. Ltd., M/s Kanpur Kashmir Roadways & M/s Havells India Ltd. Versus CCE, Delhi - IV

2015 (12) TMI 252 - CESTAT NEW DELHI

Waiver of pre deposit - Job Work activity for the principal availing area based exemption - Manufacture of copper ignots - Assessee contend that they are liable for service tax not excise duty - Held that:- Activity of Namo is manufacture,not service and the same would attract Central Excise duty and Namo would not be eligible for duty exemption under Notification No. 214/86-CE as Havells the principal manufacturer, were availing full duty exemption under Notification No. 50/03-CE in respect of .....

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any case the question of limitation is a mixed question of facts and law which has to be examined at the stage of final hearing. Therefore, so far as the duty demand of ₹ 22,83,289/- against Namo is concerned, we are of the view that this is not the case for total waiver - Partial stay granted. - Excise Stay Application Nos. 717-718, 731, 871-872, 1038, 1060 and 1175 of 2012 in Appeal Nos. 600-601, 614, 715-716, 849, 867 and 951 of 2012 - Stay Order No. 51410-51417/2015 - Dated:- 13-4-201 .....

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lloys Pvt. Ltd., Faridabad (hereinafter referred to as Namo) are manufacturers of Aluminium ingots, zinc ingots and other alloy metal ingots. The period of dispute in this case is from January 2007 to November 2009. M/s Havells India Ltd. (hereinafter referred to as Havells) having their unit in Uttrakhand are engaged in manufacturer of electrical appliances. During the period of dispute, Havells were sending aluminium scrap to Namo under job work challans for conversion into aluminum ingots .....

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nt was of the view that since the aluminium ingots were being used by Havells for manufacture of finished products which were being cleared by them at nil rate of duty under Notification No. 50/03-CE, the job work exemption Notification No. 214/86-CE would not be available to Namo. The duty demand of ₹ 22,83,289/- against Namo is on this basis. 1.2 Another point of dispute is regarding admissibility of Cenvat credit taken by Namo on the basis of the invoices regarding supply of copper ingo .....

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the remaining quantity had been purchased through a registered dealer M/s Vardhman Sales Agency. Shri Amit Kumar Sharma, is the Accountant and authorized signatory of M/s Vardhman Sales Agency. The copper ingots claimed to have been procured from M/s V.K. Metal were claimed/shown to have been transported through M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd. 1.3 The matter was adjudicated by the Joint Commissioner vide order-in-original dated 01/6/11 by which the Adjudic .....

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gnatory Shri Amit Kumar Sharma, penalty of ₹ 2 lakhs each on M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd. and penalty of ₹ 13,68,236/- on M/s V.K. Metal, Jammu and (b) confirmed duty demand of ₹ 22,83,289/- against Namo in respect of clearances of aluminium ingots by them to Havells alongwith interest thereon under Section 11AB and beside this, while imposed penalty of equal amount on Namo under Section 11AC, imposed penalty of ₹ 36,51,545/- on .....

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3. Shri A.C. Jain, Advocate, representing Namo, M/s Vardhman Sales Agency, Shri Amit Kumar Sharma and M/s V.K. Metals Works, Shri Prabhat Kumar, Advocate representing M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd. and Shri J.P. Kaushik representing M/s Havells India Ltd., pleaded that so far as the duty demand on copper ingots manufactured by Namo Alloys on job works basis for Havells is concerned, during the period of dispute, Namo were receiving aluminium scrap from Ha .....

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annot be invoked, that as regards the duty demand for the period from February 2008 to November 2009, since during this period Namo were paying service tax on the job charges and, hence, the same transactions cannot be subjected to Central Excise duty by treating the same as manufacture, that in view of this, the duty demand of ₹ 22,83,289/- against Namo is not sustainable, more so, for the period from February 2008 to November 2009 for which the service tax payment has been accepted by th .....

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se against M/s V.K. Metal, Jammu which has been adjudicated by the Commissioner of Central Excise, Jammu and in respect of appeal alongwith stay application filed by M/s V.K. Metal against that order of the Commissioner, the Tribunal vide stay order No. 50836-50839/2015 - EX (DB) dated 05/02/2015 has waived the requirement of pre-deposit of duty demand by M/s V.K. Metal taking prima facie view that the allegation of issue of bogus invoice against M/s V.K. Metal without any manufacturing activity .....

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Transport Co. Pvt. Ltd., the same would also not be sustainable and, hence, the transporters have also prima facie case in their favour. It was, therefore, pleaded that the requirement of pre-deposit of the duty demand and Cenvat credit demand by Namo alongwith interest and penalty and requirement of pre-deposit of the penalty by the other appellants may be waived for hearing of their appeals and recovery thereof may be stayed. 4. Shri Pramod Kumar, the learned Jt. CDR, opposed the stay applica .....

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y duty and they (M/s Namo) would not be eligible for exemption under Notification No. 214/86-CE, as the principal manufacturer M/s Havells were clearing their final product at nil rate of duty under Notification No. 50/03-CE. He also pleaded that Namo have not disclosed all the relevant facts to the Department and, therefore, longer limitation period under proviso to Section 11A (1) would be invokable. He, therefore, pleaded that this is not the case for waiver from the requirement of pre-deposi .....

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/s V.K. Metal and penalty of ₹ 2,00,000/- each on M/s Kanpur Kashmir Roadways, Shri Neeraj Kumar Jain and on M/s Upkar Goods Transport Co. Pvt. Ltd. is on the same basis. However, since the Tribunal vide stay order dated 05/2/15 in respect of the appeal filed by M/s V.K. Metal Works, Jammu, against order-in-original passed by CCE, Jammu against them has waived the requirement of pre-deposit taking prima facie view that the allegation of issuing bogus invoices against M/s V.K. Metal Works, .....

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t of the aluminium scrap received by them and they were not eligible for exemption under Notification No. 214/86-CE for the reason that s Havells were availing full duty exemption under Notification No. 50/03-CE. The defence of Namo is that during this period they were under bonafide belief that their activity would attract service tax and for this reason only they had obtained service tax registration and from February 2008 onward they had paid service tax on the job charges. It is also pleaded .....

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