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2016 (1) TMI 880 - CESTAT NEW DELHI

2016 (1) TMI 880 - CESTAT NEW DELHI - 2016 (336) E.L.T. 675 (Tri. - Del.) - Under-valuation being from related persons - interconnected undertaking - Both the entities are controlled by the same person - Held that:- All the observations are fact based observations. We do not find any infirmity in the same. Therefore, we conclude that M/s.DKL and M/s. Delite Furniture 2000 are related persons. Consequently, the demands confirmed on account of under-valuation being related persons are upheld. - .....

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failed to discharge their obligations to prove that the packaging charges are being recovered in special circumstances from the customers. Therefore, the Authorities Below has rightly included the packaging charges in the assessable value. - Decided against the assessee. - Excise Appeals Nos. E/546 to 548/2007-EX(DB) - Final Order Nos.53523-53525/2015 - Dated:- 17-11-2015 - Shri Ashok Jindal, Member (Judicial) And Shri B. Ravichandran, Member (Technical) For the Petitioner : Ms. Priyanka Goel, .....

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M/s. Varun Kukreja & Sons and M/s. Delite Furniture 2000 is owned by Shri Darshan Kumar Kukreja being proprietor of the same. Both the appellants are having their registered office at 46, Kukreja House, Rani Jhasi Road, Delhi. The Revenue alleges that M/s. D.K. Kukreja and M/s.Delite Furniture 2000 are related persons. Therefore, the clearance made by M/s. DKL to M/s. Delite Furniture 2000 has influenced the price. Consequently, a charge of under-valuation of goods cleared to M/s. Delite Fu .....

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st and penalties on all the appellants were confirmed. Aggrieved from the said orders, the appellants are before us. 3. Ld. Counsel for the appellants submits that the demand has been confirmed on the allegation that M/s. DKL and Delite Furniture 2000 are related persons as Shri Darshan Kumar Kukreja is the proprietor of M/s. Delite Furniture 2000 and having shareholding in M/s. DKL. But at the time of investigation, no incriminatory documents were found and there is no money flow back to establ .....

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is having only 20% of the shares whereas for major share holding more than 20% shares are required. Therefore, she prayed that demand on account of related persons is not sustainable. She further submits that as investigation was started in September, 2002, and the show cause notice came to be issued only in the month of 2004, therefore, demand is hit by limitation. She further submits that the demand confirmed on account of addition of packaging charges in the assessable value is not sustainabl .....

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t M/s.DKL and Delite Furniture 2000 are associated and they have interest in the business of each other. Therefore, the demand has been rightly confirmed on the allegation of under valuation. She further submits that as the fact that the appellants are related persons has not been disclosed to the Department, therefore, extended period is rightly invoked in this case. She further submits that the onus that the special packaging charges are not includible in the assessable value is on the appella .....

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he buyer proprietary firm), another person who was Executive Director of the first appellate manufacturing company, his son, namely, Shri Varun Kukreja (Executive Director of the appellant number 1 Public Limited Company) has signed the price list of the Proprietary firm, M/s. Delite Furniture 2000 ( of which he was not the owner) with effect from 01.09.2001, showing control exercised by appellant number 1 over the proprietary firm. (ii) Without any financial consideration on record, the logo wa .....

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e drawing salary from the DKL payment of salaries showing financial involvement and control. (iv) there was common staff present in the searched premises mentioned above in the show cause notice used in common for business purposes (as registered office/corporate office / show room / sales office/ godown). (v) Shri Jagdish Prasad further stated that as regards delivery or receipt of the goods they take orders from one Ms. Sunita in the Head Office in respect of all the companies as per the direc .....

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ed by the same person, Shri D.K. Kukreja as well as by the Group of persons representing his family. His son (a member of his family) while being Executive Director of the appellant company is found to have signed on the price list of the proprietary firm that was already under the 100% ownership and control of his father and in view of the fact that the shares held by Shri D.K. Kukreja and his family members in the appellant company which taken together were more than 50% as well as on account .....

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5) ELT 8] the concept of inter connected undertakings under the MRTP Act was, in the absence of any such mention in the Central Excise Act, is irrelevant to a determination of the question of whether undertakings were related there under or not. 7. As the allegation alleged in the impugned order has not been controverted by the appellants with cogent defence, therefore, we hold that the authorities below has rightly observed that as per Section 4 of the Central Excise Act, 1944, M/s. DKL and M/s .....

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ressing the question whether the appellant number 1 and M/s. DF 2000 are related or not to argue by merely focusing in an isolated and piecemeal manner on the corporate or non-corporate nature of the entities or confining oneself to arguments on single aspects of ownership and control, shares, etc., whereas, it is the totality of the relationship that is required to be seen while deciding the broad question. Whether they are so associated that they have interest, directly or indirectly, in the b .....

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