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2018 (4) TMI 718

e 9B of CER 1944, was valid? - whether the SCN issued, pending the finalization of provisional assessment is valid? - Held that: - the show cause notice issued prior to finalization of provisional assessment, when admittedly the assessees were under provisional assessment scheme, is ab initio void - SCN not maintainable. - The concerned Adjudicating/Competent Authority directed to finalize provisional assessment of M/s Venugopal Engineering Ltd., now known as M/s Electroparts India Private Ltd. and M/s Domebell Electronics India Private Ltd., with effect from 01/03/1994. - Appeal allowed - decided in favor of appellant. - E/1653, 1652 & 1654/2007-EX[DB] - FINAL ORDER NOs. 70576-70578/2018 - Dated:- 2-4-2018 - Mr. Anil Choudhary, .....

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eals filed by DEIPL. The brief facts are as follows: - 2.1 Appellant DEIPL is engaged in the manufacture of Colour TV sets under the brand name, Videocon since 1987. DEIPL was purchasing raw materials from various suppliers including EIPL and VIL. The CTVs manufactured were sold in wholesale trade mainly to VIL. 2.2 DEIPL was not undertaking any trade activity at their factory, certain trading activity was undertaken at their branches. DEIPL had a general agreement with VIL for the sale of CTVs on principal to principal basis. DEIPL had been manufacturing CTVs for the last several years and had developed their technology for the manufacture of CTVs on their own. Besides, Videocon brand, DEIPL have also been manufacturing and clearing CTVs u .....

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be ₹ 28,41,732/- M/s DEIPL paid an amount of ₹ 4,10,433/- voluntarily and an amount of ₹ 15,16,112/- under protest. Though the party claimed deduction of Sales Tax at uniform rate of 10%, however they failed to produce any evidence regarding the payment of Sales Tax @ 10%. On account of transportation charges, no proof was submitted. During the period, March, 1994 to February, 1995, M/s EIPL sold 15382 nos. of CTVs sets to M/s VIL at lower price. More than 90% of the sale were made by EIPL in UP only and the party was not required to pay any sales tax in respect of sale made within the State of UP. Thus for March, 1994 to February, 1995, duty works out to be ₹ 41,21,137/- and for the period March, 1995 to December, .....

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grieved Appellants preferred appeal before this Tribunal. Further in the grounds of appeal, reference to provisional assessment was made and pending finalization, SCN was issued. This Tribunal vide Final Order dated 23/07/1999 remanded the matter to the Commissioner with the direction for examination of the records in detail and also examine Appellants contentions about provisional assessment and pass appropriate order. 8. Order-in-Original dated 27/02/2003 was passed, whereby the Ld. Commissioner reconfirmed the demand of ₹ 9,98,892/- on the Appellant DEIPL and also imposed penalty of ₹ 10,00,000/-. However, the ld. Commissioner gave the benefit of deductions of Sales Tax and Transportation to M/s DEIPL. Further, Ld. Commission .....

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Mumbai Vs I.T.C. Ltd. 2006 (203) E.L.T. 532 (SC) wherein Hon'ble Supreme Court under similar facts and circumstances, where provisional assessment was ordered and show cause notice under Section 11A of the Act was issued before finalization of provisional assessment. The Hon'ble Court relying on its earlier ruling in the case of Serai Kella Glass Works Pvt. Ltd. Vs Collector of Central Excise, Patna [1997 (91) E.L.T. 497=(1997) 4 SCC 641] observed that Section 11A deals with recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. The proceedings under Section 11A have to be commenced with the show cause notice issued within 6 months from the relevant date. "Relevant date" has been de .....

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