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2016 (3) TMI 393 - CESTAT MUMBAI

2016 (3) TMI 393 - CESTAT MUMBAI - 2016 (344) E.L.T. 372 (Tri. - Mumbai) - Entitlement to exemption - Blue Star Pre Fabricated Building consisting of insulated panels - notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 - Held that:- Excise duty at the tariff rate i.e. 8% despite the exemption. Notification No. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 were available. - Prior to insertion of subsection (1A) w.e.f. 13/5/2005 it .....

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8377; 5,94,493/- and appropriation thereof was illegal. - Demand of an amount u/s 11D - Cenvat / Modvat Credit reversed towards exempted goods shown and claimed in the Invoice - As regard the demand of ₹ 6,47,313/- paid under Rule 57CC by invoking Section 11D, we find that it is very clear from the invoices that respondent have not recovered the amount of 8% reversed by them under Rule 57CC. This was correctly observed by Ld. Commissioner (Appeals). The revenue also, on the contrary, .....

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39;s appeal is directed against Order-in-Appeal No. AT/M-III/76/2005 dtd. 25/2/2005 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone III, wherein Ld. Commissioner allowed the appeal of the Respondent. 2. The fact of the case is that the respondent are the manufacturer of Air Conditioners, Pre-fabricated building consisting of insulated panels etc. falling under Chapter 84 and 94 of the First Schedule to the Central Excise Tariff Act, 1985 and have been availing modvat /Cenvat .....

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he respondent, despite the aforesaid exemption, they were paying 8% duty and such duty was recovered from their customers. From March, 2000 onward tariff rate being NIL, they paid an amount of 8% of the value of the said goods under Rule 57 CC of the erstwhile Central Excise Rules, 1944. In the show cause notice it was alleged that the appellant should have availed the exemption vide notification No. 17/98-CE and 5/99-CE and clear the said goods under NIL rate of duty and paid an amount of 8% of .....

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customers separately as cost. They were asked to submit the proof of the debit of modvat under Rule 57CC recovered separately from the customers for the period March, 2000 onward, they did not furnish any proof. In the show cause notice it was proposed to appropriate an amount of ₹ 5,95,493/- paid by the respondent against demand of same amount for the period 18/9/1998 to February, 2000 and also proposed demand duty of ₹ 6,47,313/- for the period March, 2000 onwards under Section 11D .....

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000 to October, 2001 payable to the credit of Central Government under the provisions of Section 11D(1) of the Central Excise Act, 1944. 2. I also confirm the appropriation of amount of ₹ 5,94,493/- paid by the assessee vide TR6 Challan No. 008/2001-2002 dated 20/11/2001 towards the amount payable to the Government in terms of Section 11D(1) of Central Excise Act, 1944. Aggrieved by the aforesaid order-in-original dated 23/1/2004 the respondent filed appeal before the Commissioner (Appeals .....

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ore the demand of amount under Rule 57CC and recovery of the same under Section 11D is correct. As regard the period March, 2000 onward, though the respondent availed exemption and reversed 8% under Rule 57CC, the same is recoverable for the reason that the respondent have recovered the said amount from their customers. 4. Shri. Siladitya Sarkar, Ld. C.A. with Shri. Raghunath Nair, C.A. of D.B. Desai & Associates appearing for the Respondent submits that till February, 2000 though the produc .....

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value and the same was not added in the invoice value, hence the amount so paid under Rule 57CC was not recovered from customers. He shown some sample invoices wherein it is very clear that the respondent have not recovered the amount of 8% reversed under Rule 57CC. 5. We have carefully considered the submissions made by both sides. 6. We find that the respondent have paid the excise duty at the tariff rate i.e. 8% despite the exemption. Notification No. 17/98 CE dated 18/9/1998 and Notification .....

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isable goods of any specified description from the whole or any part of the duty of excise leviable thereon: Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured- (i) in a free trade zone or special economic zone and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and brought to any place in India. Explanation. - In this proviso, "free trade zone .....

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