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2016 (11) TMI 476 - CESTAT NEW DELHI

2016 (11) TMI 476 - CESTAT NEW DELHI - TMI - Repayment of Cenvat credit utilised in contravention of Rules 3 and 4 of the Cenvat Credit Rules, 2004 - credits have been used for making payments for the finished products which have not been manufactured in the assessee's factory - job work - Held that: - the assessee has admittedly got the goods manufactured on job work basis in its sister concern in terms of Notification No.214/86-CE. As per the definition in 2(f) of the Central Excise Act, 1994, .....

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d Rule. In the absence of any of the ingredients, there can be no justification to invoke the extended period of time for issuing demand. Respondent has relied on many case laws including the decision of the Hon'ble Supreme Court in the case of CCE Vs. Chemphar Drugs & Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA]. In the said decision Hon'ble Supreme Court categorically held that conscious or deliberate withholding of information by manufacturer is necessary to invoke larger limitation .....

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admanabhan, Member ( Technical ) Mr. Manish Saharan, Advocate - For Appellant M.R. Sharma, DR - For Respondent ORDER Per Mr. V. Padmanabhan The present appeals are filed against Order-in-Appeal, dated 09.03.2011. The appellant is a manufacture of corrugated boxes falling under Chapter Heading 48.19.12 of the Central Excise Tariff Act, 1985. They were availing the benefit of cenvat credit. The factory was sold to M/s. Unwin Packaging Industries Ltd. on 27.06.2005. However, the Central Excise regi .....

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rker, duty was paid by the appellant by debiting the cenvat credit available in the books of the appellant. Departmental officers visited the original factory premises of the appellant on 17.03.2006 and found the unit running in the name of M/s. Unwin Packaging Pvt. Ltd. As a consequence of investigation, Show Cause Notice was issued to the appellant and (i) An amount of ₹ 4,12,089/- was demanded under Section 11D of the Central Excise Act, 1944 along with interest by Revenue taking the vi .....

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credit was utilized in contravention of the provisions of Rules 3 and 4 of the Cenvat Credit Rules, 2004. (iii) Penalty equivalent to the cenvat credit was also proposed to be invoked. (iv) Penalty was proposed under Rule 26 of the Cenvat Credit Rules, 2004 on Shri Ajit Mansharamani, the Director of the appellant factory. 2. In Order-in-Original dated 25.11.2010 as proposed above in the Show Cause Notice were confirmed. The penalty of ₹ 2 lakhs also imposed on the Director. The order was c .....

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ng this period, they have got the corrugaged box manufactured on job work basis, which is permissible under the job work Notification No.214/86-CE, dated 16.03.1986. There is no bar on availing the cenvat credit, which continues to remain in the books till the date of surrender of the registration. (ii) Since the excise duty stands paid on the goods by availing cenvat credit, the appellant has not contravened any of the provisions. (iii) He also agitates against the demand on grounds of limitati .....

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43 (Tri.-Mumbai)] (iii) CCE, Pune Vs. Coca-Cola India Pvt. Ltd.[2007 (213) ELT 490 (SC)] (iv) Siddeshwar Textile Mills Pvt. Ltd. Vs. CCE, Pune [2009 (248) ELT 290 (Tri.-Mumbai)] 5. Ld. Departmental Representative reiterates the findings of the authority below. He submits that the impugned goods were not manufactured in the factory of the appellants and therefore they cannot utilise the credit of payment of excise duty for the impugned final products. By utilising such Cenvat credit and showing d .....

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ued to be in the name of the assessee until the date of its surrender with the Department on 29.03.2006. The dispute is with reference to the period in between two dates given above. The claim of the assessee is that the corrugated boxes were got manufactured by their sister concern on job work basis. The duty was paid by the assessee making use of the credit, which was available on the date of sale of the unit until the date of surrender of the registration. The Departmental authorities took th .....

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enalties equal to the duty was levied on the assessee and ₹ 2 lakhs imposed on the Director of the appellant. 7. The claim of the assess in the appeal is that they should continue to be held as manufacturer till such time the registration issued to them is surrendered. They are entitled to get the goods manufactured on job work basis from its sister concern in terms of Notification No.214/86-CE and make payment of the duty. For this purpose, their claim is that they are entitled to make us .....

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ging, the assessee will not be eligible to make use of the Cenvat credit available in their books. I find that the registration for the factory continued to be in favour of the assessee upto 29.03.2006 even though the sale deed dated 27.06.2005. In the eyes of the Department, the factory premises continue to remain registered in the name of the assessee. The job work Notification No.214/86-CE gives the facility to any manufacturer to get processed or manufactured from another premises, subject t .....

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e has also accepted that they have observed all the formalities required in terms of the job work Notification No.214/86-CE. There is no finding in the orders of both the authorities below to the contrary. In as much as the amounts stand paid as excise duty on finished products, I find no justification for demanding payment of the same under Section 11D of the Central Excise Act, 1944. Neither the authorities below have expressed any opinion that the amounts paid by way of excise duty was not re .....

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