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2016 (9) TMI 1131 - CESTAT NEW DELHI

2016 (9) TMI 1131 - CESTAT NEW DELHI - TMI - SSI Exemption - Valuation - Notification No. 8/2003-CE dated 1.3.2003 - retail prices charged to customers in the shop - Held that:- appellant pleaded that the department added the value of even non-excisable goods and exempted excisable goods which are to be excluded as per the Notification No. 8/2003-CE. In this regard, we observe that the assessee/appellant is correct that for deciding on the eligibility of exemption Notification No. 8/2003-CE the .....

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g the sale price in such a manner so as to arrive at the price on which the manufacturer would have sold the said goods in wholesale. It is to be noted that value has been defined in Explanation (c) to the Notification No. 8/2003; therefore, total turnover to decide on eligibility is to claim benefit of Notification No. 8/2003 to be computed by totalling the value of specified goods only. - The submission of the assessee for giving them the benefit of abatement is correct; and assessable val .....

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by the assessee before arriving at the liability of central excise duty against the assessee. The matter, therefore, deserves to be remanded to the original adjudicating authority for deciding afresh the liability of Central Excise duty of the appellant unit after calculating the correct turnover (i.e. after deducting the value of non-excisable and exempted excisable goods) and further after giving the benefit of abatement as applicable in respect of the items manufactured, which are under abat .....

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or wilful misstatement on the part of the appellants. Therefore, for the present facts law of Central Excise does not permit the Revenue to invoke extended period of limitation. In other words, Deptt. cannot issue demand for the period beyond one year from the relevant date, which is the date of Show Cause Notice (SCN). Therefore, demand for the period beyond one year is set aside and demand for the period of one year preceding the relevant date which is 29.12.2006, the date of SCN, is sustaine .....

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e Rules, 2002 is hereby set aside. - Appeal disposed of - Appeal No. E/805-806/2008-Ex.(DB) with E/Misc./50740/2016 - Final Order No. 53561-53562/2016 - Dated:- 9-9-2016 - Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Dr. Prabhat Kumar, Advocate for the appellant Shri Amresh Jain, D.R. for the respondent ORDER Per Ashok K. Arya 1. Heard both sides. 2. The main issues involved in the case are : (i) Valuation of goods and admissibility of benefit of exemption Notification .....

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itional penalty of ₹ 5 lakhs imposed on Shri Atul Tandon, partner of the appellant No. 1, M/s Wenger and Company. 5. The ld. Advocate Dr. Prabhat Kumar on behalf of the appellants at the strength of written submission submits that: (A) The valuation and denial of benefit of exemption Notification No. 8/2003-CE dated 1.3.2003: (i) Retail prices charged to customers in the shop cannot be taken as the transaction value under Section 4 of Central Excise Act, which provides for assessment on wh .....

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of raising demand of Central Excise duty. (vi) Valuation has to be taken not at retail price, but for wholesale price or under valuation Rules. This would substantially reduce the turnover. (vii) Turnover of non excisable goods and excisable goods exempted from central excise duty has to be excluded as per Notification, the total value is between 40-50% of total turnover. Reliance is placed on the following case i.e. CCE, Pondicherry Vs. ACER India Ltd. 2004 (172) ELT 289 (SC). (B) Invocation o .....

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2006 (197) ELT 465 (SC). (e) CCE, Mumbai Vs. Damnet Chemicals Pvt. Ltd. 2007 (216) ELT 3 (SC). (f) Anand Nishikawa Co. Ltd. Vs. CCE, Meerut- 2005 (188) ELT 149 (SC). (g) CC, Mumbai Vs. M.M.K. Jewellers 2008 (225) ELT 3 (SC). (C) Levy of penalty: (i) The appellant did not wilfully contravene any provisions of Central Excise law; there is no mens rea, therefore, no penalty is imposable. (ii) Reliance is placed on the following cases: (a) 2005 (187) ELT 489 P.V. Ukkru International Trade Vs. CC, C .....

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8/2007-CE (supra): - The appellant pleads that the department added the value of even non-excisable goods and exempted excisable goods which are to be excluded as per the Notification No. 8/2003-CE. In this regard, we observe that the assessee/appellant is correct that for deciding on the eligibility of exemption Notification No. 8/2003-CE the turnover is to be computed after excluding the value of non excisable and exempted excisable goods. Revenue has to follow this principle that value of non .....

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gard, we take the support from CESTAT Kolkata decision in the case of Macneill Engineering Ltd. Vs. CCE 2001 (134) ELT 173 (Tri.-Kolkata). It is to be noted that value has been defined in Explanation (c) to the Notification No. 8/2003 (supra); therefore, total turnover to decide on eligibility is to claim benefit of Notification No. 8/2003 (supra) to be computed by totalling the value of specified goods only. 8.1.2 It was pleaded by the assessee/appellant that Revenue has taken retail price in t .....

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ubject items. This aspect has not been discussed by the lower authorities, when it is so then the department has to consider/give abatement as admissible for the goods being manufactured by the assessee before arriving at the liability of central excise duty against the assessee. The matter, therefore, deserves to be remanded to the original adjudicating authority for deciding afresh the liability of Central Excise duty of the appellant unit after calculating the correct turnover (i.e. after ded .....

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very beginning. The assessee has been in correspondence with the department since the year 1998. The assessee has given numerous letters to the Revenue on the problems faced by them in respect of payment of Central Excise duty; for example assessee s letter dated 2nd April, 1998 to the Commissioner requesting the department to allow suitable deductions from the retails price as per Rule 6(9) of Valuation Rules. The assessee has also been filing regular returns with the department on the goods m .....

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