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Commissioner of Central Excise, Nashik Versus Copper Semis Pvt. Ltd. (Vice-versa)

2016 (9) TMI 33 - CESTAT MUMBAI

Imposition of penalty - credit taken on the strength of invoice received from M/s. Nakoda Trading Corporation has been denied - M/s. Nakoda Trading Corporation had not received the imported goods at all - sale of imported goods to the appellants and the countervailing duty paid on the imported goods was transferred to the appellant by issue of invoices, on which the appellant had taken the credit - Held that:- it is found that earlier in the case of another noticee in the same proceedings, namel .....

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licy. In view of the above, the appeal filed by the Revenue in the case of Shri Pradeep Gaur is dismissed. - Invokation of extended period of limitation - Demand - credit taken during 2005 has been raised in 2010 - Held that:- the order-in-original does not record any ground for upholding the extended period of limitation and also does not examine the documents submitted by the appellants to establish that they have indeed received the goods. In the impugned order also no suppression mis-dec .....

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emand is therefore set aside as barred by limitation. - Decided in favour of appellant - E/1522 & 1666/11 - A/88902-88903/16/SMB - Dated:- 29-7-2016 - Mr. Raju, Member (Technical) Shri.NN Prabhudesai, Supdt. (AR) for appellant Shri.Bharat Raichandani, Advocate for respondent ORDER The appellant, M/s.Copper Semis Pvt. Ltd. were issued a show-cause notice seeking to deny credit taken on the strength of invoice received from M/s.Nakoda Trading Corporation. M/s.Nakoda Trading Corporation had in turn .....

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uded that M/s.Nakoda Trading Corporation had not received the imported goods. M/s.Nakoda Trading Corporation had on record shown the sale of imported goods to the appellants and the countervailing duty paid on the imported goods was transferred to the appellant by issue of invoices, on which the appellant had taken the credit. The demand was confirmed by lower authorities and penalty was also imposed on various people including Shri Pradeep Gaur, partner of the appellant. The Commissioner (Appea .....

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y filing a miscellaneous application. The said appeal was allowed to be withdrawn vide order dated 11/03/2016, as the amount of penalty was below the threshold limit prescribed in the litigation policy. In the case of Shri Pradeep Gaur, the facts are identical and the penalty imposed is ₹ 2.00 lakhs which is below the threshold limit prescribed in the litigation policy. In view of the above, the appeal filed by the Revenue in the case of Shri Pradeep Gaur is dismissed. 3. The learned Couns .....

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e of weighbridge receipt, Municipal Corporation check post receipts, etc. to assert that they had indeed received the goods. However, order-in-original did not examine any of the said records. The learned Counsel produced the said records and showed the details in respect of one such invoice. In respect of invoice No.50 dated 09/07/2005 which showed that re-melted copper ingots weighting 5019 Kgs were sent by Skoda Trading Corporation to the appellants. The said invoice issued under Rule 11 of t .....

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received by the appellant. 4. The learned Counsel argued that the entire case has been made on the strength of the statements recorded from various persons. The appellant had sought cross examination of the most of the people whose statements were relied upon in the show-cause notice. However, the cross-examination was denied. The learned Counsel pointed out that the impugned order puts on them the onus of proof that the goods received by them were in fact the same goods as were imported by the .....

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s.Nakoda Trading Corporation, Mumbai as evidenced from octroi receipt, GRs, etc. The first appellant has however not countered the evidence to the effect that M/s.Nakoda Trading Corporation have not in first place received the goods on which duty has been paid and therefore such goods cannot be consigned to first appellant and can not be received by first appellant. The learned Counsel argued that the entire case is based on the statements of various people whose cross-examinations were sought, .....

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escription as that appears in the invoice has not been disputed. In these circumstances no liability can be put on the appellants. He pointed out that in these circumstances extended period of limitation cannot be invoked. In the impugned order the extended period has been upheld by observing as follows: The first appellant also argued that extended period can not be invoked as there is no willful suppression/fraud, etc. on the part of the appellant and cited case laws. I will discuss cases cite .....

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law and that all other required documents have already been made available to the department by the appellant. As against this, in the instant case, the vital fact that the very inputs on which credit has been taken has not been received in the factory, was not disclosed by the appellant No.1 and therefore, the ratio of above decisions will not be applicable. Similarly, the facts and circumstances of other cited cases are clearly distinguishable from the facts and circumstances of the case at ha .....

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-Mum). The learned AR argued that while receipt of goods of similar description by the appellant is not disputed, he argued that fraud has been committed in respect of these goods by the importer. He argued that since the supplier of goods is engaged in fraud extended period of limitation can be invoked against the appellant. He argued that is not necessary to the appellant themselves involved in the fraud in invocation of extended period of limitation. He relied on the following decisions to as .....

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the said case in similar circumstances demand has been upheld. 6. I have gone through the rival submissions. I find that extended period of limitation has been invoked against the appellant. The order-in-original does not record any ground for upholding the extended period of limitation. The order-in-original does not examine the documents submitted by the appellants to establish that they have indeed received the goods. In the impugned order also no suppression mis-declaration or fraud on the p .....

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