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Gujarat Boron Derivatives Pvt. Limited., Kamlesh Shah, Director Versus C.C.E. & S. Tax, Vadodara

2017 (11) TMI 765 - CESTAT AHMEDABAD

CENVAT credit - 4% Additional Customs Duty (SAD) - It is the contention of the Department that 4% SAD paid on such imported goods without its receipt and use in the factory premises is not admissible as credit to the Appellant. - Held that: - even though appellant have sold the goods on its import from the place import itself, by raising commercial invoice, but they have intentionally and knowingly manipulated the records making false entry in the RG 23A part I and Part II showing its receip .....

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wn in the said Notification would not come to the rescue to the Appellant. - Appeal dismissed - decided against appellant. - Central Excise Appeal No.11745 of 2013, 11746 of 2013-SM - Final Order No. A/13307 - 13308/2017 - Dated:- 31-10-2017 - Dr. D.M. Misra, Member (Judicial) Shri Devan Parikh, Senior Advocate with Shri Willingdon Christian, Advocate for the Appellants Dr. J. Nagori, A.R. for the Respondent/Revenue ORDER Per Dr. D. M. Misra This Appeal is filed by the Appellant against the .....

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-07 to 2009-10 (up to December 2009), a demand notice was issued to them on 02.02.2011 for recovery of inadmissible credit of ₹ 26,31,022/- with interest and penalty; also personal penalty proposed on the Director. On adjudication, the demand was confirmed with interest and penalty and also personal penalty of ₹ 26,31.022/- was imposed under Rule 26 of the Central Excise Rules, 2002 on Shri Kamlesh Shah , Director of the Company. Aggrieved by the said order, the Appellants preferred .....

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06. It is his contention that the 4% SAD paid at the time of import became admissible as refund on sale of the imported goods as such with effect from 14.9.2007 by virtue of Notification No.102/2007-Cus dated 14.9.2007. Therefore, no intention to evade payment of duty could be attributable to them for availing credit when the goods were sold as such from the place of port against commercial invoice. It is his further submission that the demand notice was issued on 02.02.2011 for the period April .....

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has submitted that during the period there were audits of their records and hence invoking longer period of limitation is untenable in law. In support, he has referred to the judgment of the Hon ble Gujarat High Court in the case of C.C.E., Bangalore vs. Pragathi Concrete Products (P) Ltd. 2015 (322) ELT 819 (SC); Commissioner vs. Dynamic Industries Ltd. -2014 (35) STR 674 (Guj.). 4. Per contra, the ld.A.R. for the Revenue has submitted that even though during the relevant period the Appellant .....

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record shown the receipt of the imported goods in their factory and also the issue of such materials in the production of finished goods in the relevant column 8 of the RG-23A Part I and Part II register. In the said register, they had mentioned issue slips which were fabricated and allotted false chit numbers , itself shows the intention of the Appellant was to avail CENVAT credit of 4% SAD which was not admissible to them as they knew that these imported goods were traded from the place of imp .....

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plea of the Appellant that it is revenue neutral situation should not be accepted. Answering the argument, that the audit of their records during the period in question had been undertaken by the Department itself would absolve them, from the allegation of suppression of fact cannot be accepted since the Appellant had manipulated the records showing receipt and use of the imported raw material in their RG-23A Part I and Part II register. This could be detected only after considering other circum .....

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inancial year 2005-06 availed the CENVAT credit of 4% of SAD, itself shows their intention and bonafide belief; no manipulation of the records was carried out by them with malafide intention. 6. Heard both sides and perused the record. There is no dispute of the fact that Appellants during the relevant period had been importing Borax Pentahydrate, and instead of receiving and utilizing same in the manufacture of finished goods in their factory sold out it against commercial invoices. It is the c .....

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he total quantity on which credit availed were shown as receipt and disposal in the RG 23A part I and part II register, therefore there was no suppression of facts from the knowledge of the Department leading to invoking of extended period of limitation. Further, the contention of the Appellant that in any case, they would be entitled to refund of 4% SAD after 14.9.2007, as allowed under Notification No.102/2007, therefore, the credit involved thereafter be considered as a revenue neutral situat .....

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