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2016 (6) TMI 268 - CESTAT MUMBAI

2016 (6) TMI 268 - CESTAT MUMBAI - 2016 (344) E.L.T. 485 (Tri. - Mumbai) - Validity of show cause notice - duty along with interest was paid before issuance of SCN - Payment of interest within three months from the date of clearance of the goods - Held that:- When there is no suppression of fact on the part of the assessee and the duty along with interest is admittedly paid without contest, the show cause notice should not have been issued. - The only exception, is provided that if the duty .....

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ued nor any charges of the show cause notice should have been confirmed. As per above discussion and the clear legal provision under sub-section (2B) of Section 11A, the confiscation of the goods is not legal and correct. Therefore the impugned order is set aside and appeal is allowed in favour of assessee. - Appeal No. E/291/2011 - A/87211/16/SMB - Dated:- 11-3-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri B. Venugopal, Advocate For the Respondent : Shri N.N. Prabhudesai, .....

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y Sunfeast Biscuits for them. On termination of contract and as per the direction of the appellant, the capital goods were dispatched to M/s. Utsav Food Products and M/s. Disha Foods Pvt. Ltd. While clearing the capital goods from M/s. MRBBIPL excise duty was not paid/modvat was not reversed even the appellant had paid entire duty amount to M/s. MRBBIPL. Therefore the said capital goods were seized from the premises of M/s. Utsav Food Products and M/s. Disha Food Products Pvt. Ltd. Thereafter M/ .....

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ection 34 of the Central Excise Act, 1944. Being aggrieved by the Order-in-Original dt. 30.6.2010, the appellant M/s. ITC Ltd. filed appeal before the Commissioner (Appeals), who vide impugned order upheld the Order-in-Original and rejected the appeal. Therefore the appellant is before me. 3. Shri B. Venugopal Ld. Counsel appearing for the appellant, submits that M/s. MRBBIPL did not pay duty at the time of clearance of the goods but on pointing out by the department, the entire duty amount alon .....

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by the department the case is squarely covered under Section 11A(2B) of Central Excise Act, 1944. According to him, the show cause notice should not have been issued, therefore in the absence of any show cause notice confiscation of goods and redemption fine does not arise. He further submits that the appellant M/s. ITC Ltd. being owner of the goods, have clearly shown their bona fide before removal of the goods from M/s. MRBBIPL. They have made a payment towards the excess duty to M/s. MRBBIPL. .....

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er of the goods, but if the clearance of goods made without payment of duty the goods are liable for confiscation in terms of Rule 25 of the Central Excise Rules 2002. Therefore on the ground that the buyer is a bona fide buyer and the appellant though paid duty to M/s. MRBBIPL but the facts remain that the goods were cleared without payment of duty, therefore the goods are liable for confiscation. He placed reliance on the Tribunal decision in the case of Omega Enterprises Vs. Collector of Cust .....

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and duty was not paid in time but the goods were covered under valid invoice. Therefore, at the end of the recipient when the goods were received under the cover of legitimate invoice, the goods cannot be confiscated. As per the facts of the case though duty was not paid in time but the goods were cleared under valid invoice and on pointing out by the department, M/s. MRBBIPL has discharged the entire duty along with interest, before issuance of show cause notice. Since the M/s. MRBBIPL has issu .....

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ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such .....

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