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2016 (3) TMI 262 - CESTAT AHMEDABAD

2016 (3) TMI 262 - CESTAT AHMEDABAD - TMI - SSI exemption benefit under Notification No. 8/2002-CE dated 01.3.2002 denied - demand of duty alongwith interest and imposed penalty of equal amount of duty on the assessee and also imposed penalty of ₹ 5 Lakh on the partner of the assessee, amongst others - Held that:- The partner of the assessee, in various statements, had categorically stated that they had charged invoice value to the customers including the duty and other taxes. It is seen t .....

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d assessable value determined after abating it. Thus it is clear that the invoices mentioned in Annexure C of the Show Cause Notice has already been included in the Annexure A while computing the value of clearances. Therefore, the demand of duty as shown in Annexure C, as included in Annexure A, cannot be sustained.

We find that the demand of Central Excise duty on the partnership firm was confirmed and the penalty was imposed under Section 11AC of the Central Excise Act, 194 .....

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to, the value of clearances for the purpose of determining exemption benefit, the cum-duty benefit would be extended and the demand of duty on the basis of Annexure C to the Show Cause Notice alongwith interest and penalty is set-aside. The adjudicating authority is directed to re-determine and re-quantify the demand of duty, interest and penalty as per above directions. - Appeal No. : E/1302,1303/2008 - ORDER No. A/11798-11799/2015 - Dated:- 8-12-2015 - MR. P.K. DAS, MEMBER (JUDICIAL) AND MR. .....

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84 of the Central Excise Tariff Act, 1985. On 19.7.2006, the Central Excise officers visited the factory of the assessee and noticed that the assessee had wrongly availed SSI exemption benefit under Notification No. 8/2002-CE dated 01.3.2002. A Show Cause Notice dated 27.7.2007 was issued, proposing demand of duty alongwith interest and to impose penalty for the period 2002-2003 to 2006-2007 on the assessee and also to impose penalty on the partner of the assessee firm amongst others. By the imp .....

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sis of issuing parallel invoices in the name of Pavemax Engineers. He fairly submits that in order to avoid legal complexity, the assessee paid the entire amount of duty alongwith interest and penalty 25% of the duty, which they are not disputing. The main contention of the learned Advocate is that the assessee is entitled to get the benefit of cum-duty price. Further, there is duplication of demand of duty to the extent of invoices mentioned in the Annexure C to the show cause notice have alrea .....

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2014 (312) ELT 699 (Tri. Del.) (b) Kankariya Enterprises vs. CCE, Pune - 2014 (309) ELT 582 (Tri. Mumbai) (c) Soft Foam Industries Pvt. Limited vs. CCE, Hyderabad - 2013 (292) ELT 270 (Tri. Bang.) (d) Reliance Industrial Products vs. CCE, Daman - 2010 (260) ELT 312 (Tri. Ahmd.) (e) Deekeen Polyesters Pvt. Limited vs. CCE, Surat 2009 (234) ELT 129 (Tri. Ahmd.) 3. The learned Authorised Representative on behalf of the Revenue reiterates the findings of the adjudicating authority. He submits that .....

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customers, in their statements had also admitted that the value is inclusive of excise duty. Hence, while computing the value of clearances for the purpose of exemption notification, it should be determined after extending cum-duty benefit. We find that the Tribunal in the case of Meghdoot Gramoudyog Sewa Sansthan vs. CCE, Noida (supra) held that the assessee being found ineligible for exemption, the sale price has to be treated as including excise duty and assessable value determined after abat .....

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eturns is ₹ 19,48,550/- and nowhere in the returns, the same have been declared as inclusive of all the taxes and assessable value declared in ER-I returns is always exclusive of all the taxes; and (b) The appellant have not produced any evidence that the assessable value declared by them in ER-I returns includes excise duty also. According to the learned DR, the findings of the Commissioner (Appeals) are in accordance with the ratio of Honble Supreme Courts judgment in the case of Amrit .....

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s mean cum-duty price, particularly, when the assessee had cleared the goods during the relevant years by availing an exemption notification. 5.1 Sub-section (4)(d)(ii) of old Section, as it stood during the period prior to 1-7-2000 and sub-section (3)(d) of new section based on transaction value concept, as it stood during period with effect from 1-7-2000, but prior to 14-5-03, provided that - value/transaction value of excisable goods does not include the amount of duty of excise, sales tax .....

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s and in the case of Amrit Agro Industries Limited v. CCE, Ghaziabad holding that one cannot go by general implication that wholesale price would always mean cum-duty price, particularly when the assessee had cleared the goods during the relevant years by availing duty exemption and that unless it is shown by the assessee that the price of the goods includes excise duty payable by him, there would be no question of exclusion of duty element from the sale price, are in respect of Section 4, as it .....

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if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price cum-duty, excluding sale tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods. Thus, in terms of this explanation, the price charged by an assessee from his buyer including the money value of the additional consideration, if any, flowing from the buyer of the assessee, is deemed to be including the excise duty payable on .....

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ion to Section 4(1) and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty. 5. On perusal of Para 25.8 of the adjudication order, and Annexures A and C to the Show Cause Notice, it is clear that .....

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