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Manohar Brothers (Capacitors) Pvt Ltd Versus Commissioner of Central Excise, Mumbai-VII

2016 (3) TMI 516 - CESTAT MUMBAI

Ineligibility for the SSI benefit - whether the appellant has exceeded the turn-over of ₹ 2 crore in the year 1989-90 so as to become ineligible for the SSI benefit for the period 1990-91 - Held that:- As regards the penalty we find that the said penalty is in respect of delayed execution of contract with the buyers. In our considered view, during the period in question 1989-90, the provisions of Section 4 of the Central Excise Act, 1944 contemplated the assessable value to be the normal p .....

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nt which has been deducted from their account by the buyers for its delay in execution in contracts is not correct and the proposition needs to be rejected. In the case in hand, the period being prior to the concept of transaction value, normal price needs to be arrived based upon the declarations made by the assessee. In this case, there was no such declaration as to claim the deduction of an amount deducted to their account as penalty by the buyers for the delayed execution of contracts. - .....

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correct. - Invoking extended period of limitation - We find that the declarations made by the appellant did not indicate how they have worked out the clearance value of ₹ 1.99 crore. The entire value of ₹ 2 crore was worked out based upon their own documents which was checked by the authority during the visit to their factory. Hence there has been mis-declaration of the value and accordingly the claim of the appellant that the issue is time-barred also has no force. - As reg .....

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ttributable to human error and accordingly it is held penalty imposed on the appellant is unwarranted. The penalty as imposed is set aside. - In sum, the demand of Central Excise duty along with interest is upheld and the penalty imposed by the adjudicating authority is set aside. - Appeal No. E/776/2005 - Final Order No. A/3782/2015-WZB/EB - Dated:- 3-12-2015 - M V Ravindran, Member (J) And C J Mathew, Member (T) For the Appellant : Ms Anjali Hirawat, Adv For the Respondent : Shri Ashutosh .....

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records of the assessee, it was noticed by the Central Excise officers that the appellant had exceeded clearance value of ₹ 2 crore during the previous financial year 1989-90. Hence it was concluded that the appellant was ineligible for exemption under Notification 175/86. The show cause notice was adjudicated and it was held that the appellant was liable to discharge of differential duty and penalty of ₹ 5,00,000/-. Aggrieved by such an order, the appellant preferred an appeal befor .....

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onsidering the remand directions. 3. The learned counsel appearing on behalf of the appellant would take us through the entire records and submit that the only issue that needs consideration is whether the appellant is correct in computing the value of clearances for the year 1989-90. It is her submission that the threshold value of ₹ 2 crore was not exceeded by the appellant. She would submit that the lower authorities have incorrectly applied insurance and the freight expenses which have .....

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remand proceedings the adjudicating authority has imposed a penalty which is more than the penalty which was imposed in the first round, which is incorrect as has been settled by the Tribunal in the case of MRF Ltd. vs. Commissioner of Central Excise, Goa 2007 (210) ELT 96. It is her further submission that the post amendment to Section 4 of the Central Excise Act, 1994, the eventual value payable after factoring in any liquidated damages contractually stipulated for delayed supply would be the .....

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the Tribunal in the case of Commissioner of Customs & Central Excise, Hyderabad IV vs. Victory Electricals Ltd. 2013 (298) ELT 534, and it was in respect of the amended Section 4 and not for the Section 4 which would be applicable in the case in hand. 4. Learned Departmental Representative, on the other hand, would submit that the adjudicating authority has correctly extended the benefits which are applicable to them as per the order-in-original. He would submit that, in respect of computati .....

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ant has exceeded the turn-over of ₹ 2 crore in the year 1989-90 so as to become ineligible for the SSI benefit for the period 1990-91. It is the claim of the appellant that they did not exceed the turn-over of ₹ 2 crore and some figures were shown to say so. The main contention of the learned counsel is that the adjudicating authority has not allowed deduction of the amount of penalty paid by the appellant for delayed execution of contracts and the amount of freight and insurance whi .....

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goods were sold at the factory gate when the clearances took place under the Central Excise gate passes. The penalty amount which has been paid by the appellant during the relevant period was not claimed as deductions from the price-lists filed by the appellant nor was it mentioned to the lower authorities in any form. Accordingly, we find that the appellant's claim that the amount which has been deducted from their account by the buyers for its delay in execution in contracts is not correct .....

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h declaration as to claim the deduction of an amount deducted to their account as penalty by the buyers for the delayed execution of contracts. 7. As regards freight and insurance, we find that the adjudicating authority has correctly come to the conclusion that the actual amount of freight paid by the appellant has been considered and that majority of amount has been allowed as deduction. The claim of the learned counsel that freight and insurance amount has been wrongly calculated has no merit .....

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