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2016 (2) TMI 634 - CESTAT NEW DELHI

2016 (2) TMI 634 - CESTAT NEW DELHI - TMI - Extended period of limitation - duty demand - charge of deliberate evasion of duty has been alleged against the appellant - Held that:- The facts of the case in Mehta & Co. (2011 (2) TMI 2 - SUPREME COURT OF INDIA ) are squarely applicable to the facts of this case. In these circumstances, hold that duty is correctly demanded from M/s. Samleshwari Packaging Pvt. Ltd. along with interest and penalty imposed is correct. As contended by the learned Counse .....

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alty under Rule 26 clearly mandates that if the goods are liable for confiscation and in the show cause notice there is no proposal for confiscation of the impugned goods in question, therefore, question of imposition of penalty on M/s. Rohini Polymers does not arise. Therefore, set aside the duty on M/s. Rohini Polymers. - Excise Appeal No. 53239 & 53991 of 2015- (SM) - Order No. FO/50004-50005/2016-CE (SM) - Dated:- 4-1-2016 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) For the Petitioner : Shri O P .....

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s in the name of Rohini Polymers containing invoice Nos. 76 - 100 was found wherein invoice No. 76 83 and 85 -90 were issued during the period 20.2.08 to 31.3.08 without payment of Central Excise duty. Statement of Shri Pawan K Agarwal, Director was recorded, who admits that M/s. Rohini Polymers is a firm under ownership of his wife who is engaged in the stitching of bags and such work was undertaken on the machine installed in the factory premises of M/s. Samleshwari Packaging Pvt. Ltd. and mac .....

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ppellants. Duty demand thereof was confirmed by the impugned order and same was appropriated along with interest and penalty on both the appellants was also imposed. Aggrieved from the said order, the appellants are before me. 3. Learned Counsel for the appellants submits that the show cause notice has been issued beyond the period of limitation as investigation was conducted on 12.3.2008 and show cause notice has been issued on 15.3.2011. Therefore, show cause notice is barred by limitation as .....

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confiscation of the impugned goods, therefore penalty under Rule 26 of the Central Excise Rules, 2002 is not imposable on M/s. Rohini Polymers. Therefore, penalty on Rohini Polymers is to be set aside as held by this Tribunal in the case of Elango Ravi vs. CCE [2006 (198) ELT 47 (Tri)] and Avishar Processing Pvt. Ltd. [2006 (198) ELT 53 (Tri)]. 4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that in this case it is an admitted fact that appellants were .....

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the case: a) whether in the facts and circumstances of the case, extended period of limitation is rightly invoked in the show cause notice or not; and b) whether penalty under Rule 26 could be imposed on M/s. Rohini Polymers in the absence of any proposal in the show cause notice for confiscation or not. 7. With regard to the issue No.1, i.e. limitation, I find that in this case investigation was conducted on 12.3.08 and Shri Pawan K Agarwal, Director of M/s. Samleshwari Packaging Pvt. Ltd. has .....

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