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Thermax Ltd. Versus Commissioner of Central Excise, Pune

2016 (3) TMI 259 - CESTAT MUMBAI

Liability to pay the excise duty - consignee does not sent the certificate of re-warehousing within the period of 90 days - appellant are liable to pay the duty involved in the final product cleared to M/s. CFC India Services P. Ltd. on the ground that the appellant did not receive the duplicate copy of the certificate duly endorsed by the consignee - Held that:- It is a fact that with regard to the same consignee the Asst. Commissioner of Customs issued a letter to M/s. CFC India Services P. Lt .....

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e duty and in the absence of non-payment, recovery proceedings can be initiated against the buyer. In this case the said duty was recovered. Therefore, find that the appellant is not liable to pay duty. - Therefore, the entire demand is time barred as the show-cause notice has been issued beyond one year, which is the normal period of limitation and the Revenue has failed to prove suppression of facts with intend to evade payment of duty. - Decided in favour of assessee - Appeal No. E/1673/1 .....

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the First Schedule to the Central Excise Tariff Act, 1985. The appellant has alleged that the notification 22/03 dated 31.03.2003 provides exemption to all goods specified in Annexure I to the said notification, when brought in a Export oriented unit/ software technology park/ electronics hardware technology park, in connection with the processing mentioned in the notification from payment of whole of the duty of excise leviable under Section 3 of Central Excise Act, 1944 and also the additiona .....

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ver of Annexure A no. 10 dated 16.05.2007, no.11 dated 25.05.2007 and no.12 dated 30.06.2007 wherein the amount of duty involved was ₹ 2,76,864/-. The appellant cleared the consignment at nil rate of duty as per the said notification . During the course of EA-2000 audit, it was observed that the re-warehousing certificate was not received by the appellant within 90 days from the date of clearance and therefore the appellant was asked to pay the duty. Thereafter the appellant paid the duty .....

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dy deposited and imposed equal penalty and interest under Section 11AB. Aggrieved by the Order-in-Original the appellant preferred the appeal before the Commissioner (Appeals), who confirmed the Order-in-Original. In the meantime, the Asst. Commissioner of Customs, Mumbai issued a letter of the customer, M/s. CFC India Services P. Ltd. dated 17.05.2010 directing them to pay the duty of ₹ 3,65,856/- along with interest on the ground that the capital goods (Purafil Media Parts of Air handlin .....

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; 3,65,856/- and ₹ 1,76,212/- respectively towards duty and interest as per the challan annexed in the appeal and the same was acknowledge by the Asstt. Commissioner of Customs, Mumbai 3. The ld. Counsel for the appellant submitted that the appellant were provided with CT-3 certificate in respect of the final product cleared to CFS India Services Pvt. Ltd. and they have correctly cleared the final product without payment of excise duty by availing the benefit of Notification No. 22/2003-CE .....

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the entire amount of duty and interest as directed by the Asst. Commissioner and once the duty amount along with interest has already been paid by the customer and accepted by the department, the very same amount of duty in respect of the very same clearance cannot be demanded from the appellants. He further submitted that the department cannot recover the duty amount twice i.e., from the appellants as well as customer. In support of this, he placed reliance on the decision in Indian Oil Corpora .....

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lted with for non-receipt of original copy of the warehousing certificate duly countersigned by the Range Officer. She also submitted that as per Condition No. 5 to Notification No. 22/2003-CE dated 31.3.2003 which requires the manufacturer to follow the procedure prescribed in Rule 20 of Central Excise Rules, 2002 and as per Rule 20(3) which provides that the responsibility for payment of duty on the goods which are removed from the factory of production to warehouse is upon the consignee. She .....

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n cannot be invoked as there is no suppression of facts with intention to evade payment of duty. 5. On the other hand, ld. AR reiterates the findings of the Commissioner. 6. I have heard the ld. Counsel for the parties and perused the records. 7. In this case the only question to be decided whether the appellant is liable to pay the excise duty if the consignee does not sent the certificate of re-warehousing within the period of 90 days. The case of the department in the present appeal is that t .....

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