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Kellogg India Pvt. Ltd. Versus Commissioner of Central Excise, Belapur

2016 (7) TMI 1110 - CESTAT MUMBAI

Demand of duty - (i) to recover duty on MRP based assessment on goods supplied to CSD canteens and Institutions, (ii) to deny CENVAT credit taken before receipt of goods and (iii) to recover Central Excise duty on certain invoices recovered from the appellant on which there were errors. - Held that:- In so far as serial number (i) of first para is concerned, we find that the issue of applicability of MRP based assessment to institutional sales has been contentious matter and there have been vari .....

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o penalty can now be imposed on the appellant on this count. In fact the first adjudication order finalized the issue. - In so far as serial number (iii) of first para is concerned we find that all the invoices produced by the appellant show that they have invoice numbers printed by computer. In some of the invoices the serial number has also been printed by franking machine and in some others the same has been pre-printed. In all the invoices, whether pre-printed or machine printed there is .....

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Decided partly in favor of assessee. - Appeal No. E/3439/05 - A/88411/16/EB - Dated:- 14-6-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Prashant Patankar, Consultant, for appellant Shri S.V. Nair, Supdt. (AR), for respondent ORDER Per: Raju The appellant M/s. Kellogg India Pvt. Ltd., were issued a notice seeking (i) to recover duty on MRP based assessment on goods supplied to CSD canteens and Institutions, (ii) to deny CENVAT credit taken before receipt of .....

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submitted by the appellant. The Tribunal also upheld the demand of serial (i) above however, remanded the case to the original adjudicating authority for re-determination of penalties. The matter was adjudicated again by Commissioner who vide order dated 19.07.2005 upheld the demands of serial (i), (ii) & (iii) and imposed penalty equivalent to total of the amount in serials (i), (ii) and (iii) above. Aggrieved by the said order, the appellant is before the Tribunal. 2. The learned Counsel .....

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irst para is concerned the demand is wrongly confirmed as they had reversed the amount on their own and in the first order of the Commissioner no penalty was imposed. Since the said order of the Commissioner was not challenged by the Revenue, no penalty can now been imposed on them. 2.2 In respect of serial (iii) of first para the learned Counsel produced the invoices. He pointed out that demand has been raised due to discrepancy in the way serial numbers have been put on invoices. He pointed ou .....

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No. and other details of the clearance. He pointed out that in the show-cause notice there is no allegation of clandestine removal. He also argued that no evidence has been produced by Revenue to allege that there was clandestine clearance of the goods. 3. In respect of serial number (i) of first para the learned A.R. pointed out that the duty liability has been admitted by the appellant and therefore the penalty should be imposed. He argued that if the Revenue had not detected then this revenue .....

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ch point towards clandestine clearance of the goods. He stated that the appellant had without reservation paid substantial amount of duty and therefore had admitted their guilt. In these circumstances he argued that no further evidence needs to be produced to establish clandestine clearance. 4. We have gone through the rival submissions. 4.1 In so far as serial number (i) of first para is concerned, we find that the issue of applicability of MRP based assessment to institutional sales has been c .....

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