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2019 (10) TMI 96

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..... of production capacity vis a vis Electricity consumption also to be examined properly. On these issues proper consideration is required. The matter required reconsideration - matter related to assessees’ appeals, are remanded to the adjudicating authority for passing a fresh order. Cum-duty benefit - HELD THAT:- Merely because the goods were allegedly cleared clandestinely, Section 4 cannot be applied differently - As regard the doubt raised on the valuation of the goods, we find that in one hand the show cause notice has conclusively arrived at transaction value which is final. There after no question can be raised by the revenue on the value ascertained and duty was computed on such values in the show cause notice - Therefore, the L .....

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..... ation. Various statements of the directors and other persons were recorded, various computers print outs were taken and also some invoices were found on the basis of this document coupled with statements recorded, the officers were of the belief that the appellant are indulged into clandestine removal of excisable goods manufactured by them. Accordingly, an SCN dated 19.09.2006 was issued. 2. The adjudicating authority adjudicated the said show cause notice and passed the following order: 1) I determine duty amounting to ₹ 1,40,09,670/- (Rupees One Crore Forty Lakhs Nine Thousand Six Hundred Seventy) (Calculated as per Annexure attached with this order) as the duty not paid and recoverable under section 11A (1) of the Act. 2) I determ .....

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..... ule 26 of the Central Excise Rules, 2002 upon the Notice no. 3. 10) I impose penalty of ₹ 1,00,000/- (Rupees One lakh only) under Rule 26 of the Central Excise Rules, 2002 upon the Notice no. 4. 11) I impose penalty of ₹ 1,00,000/- (Rupees One lakh only) under Rule 26 of the Central Excise Rules, 2002 upon the Notice no. 5. 2.1 The aforesaid duty was confirmed by reducing the demand raised in show cause notice due to consideration of the submission of the appellant on account of Cum Duty Price. Being aggrieved by the said order in original appellants namely Himatsu Bimet Ltd, Chetan Dhruv, Jahid A. Juneja, Nova Bimet Technologies Pvt. Ltd. And M/s. La Fabrica filed appeals. 3. The revenue also filed five appeals against the comm .....

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..... ith the above submission he prays for remand of the matter. In support of his above submission he placed reliance on the following judgment. Agrasen Syntex Pvt. Ltd. Vs. Commissioner Of C.Ex., Hyderabad 2003 (154) E.L.T. 431 (Tri. Bang.) Alfa Spring Ltd. Vs. Commissioner of Central Excise, Kanpur 2006 (198) E.L.T. 74 (Tri. -Del.) Commissioner of C.Ex., Chennai Vs. G.M . Re-Rollers 2003 (153) E.L.T. 392 (Tri.- Chennai) Shivam Steel Corporation Vs. Commissioner Of C.Ex. & CUS., BBSR-II 2016 (339) E.L.T. 310 (Tri. Kotkata) Ambica Organics Vs. Commissioner of C. Ex., & CUS., Surat-I2016 (334) E.L.T. 97 (Tri.-Ahmd.) 4.1 Shri Parikh also made detailed argument on the facts and merit of the case. As regard the Revenue s appeals, Shri Deven .....

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..... ation to this effect. Documents were signed, if it is for training purpose there is no need of any signature of such document. He submits that there are various evidence relied upon in the show cause notice. Therefore, even if some evidence not acceptable, as per the preponderance of the probability the case of clandestine removal is established. He relied upon the judgment of Hon ble Supreme Court in the case of Collector Vs. D. Bhoormull 1983 (13) ELT 1546. 8. As regard the department s appeal he submits that since the case is of clandestine removal cum duty benefit cannot be extended to the assessee. 9. He placed on reliance following judgment: Shama Fireworks Industries Vs. Commissioner of Central Excise 2008 (225) E.L.T. 63 (Bom.) Sri .....

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..... ice. This issue is no longer Res-Integra in view of the following judgments. Hansispat Ltd Vs. Commr. Of C.E.X. C.U.S. & S.T., Rajkot 2016 (343) E.L.T. 622 (Tri.-Ahmd.) Commissioner of Central Excise Vs. Uday Auxichem 2012 (275) E.L.T. 565 (Tri.Ahmd.) Saafalya Industries Pvt. Ltd. Vs. Commr. Of C.EX. (Appeals), Manglore 2010 (261) E.L.T. 1071 (Tri.-Bang.) Commr. Of Cen. Ex., Delhi Vs. Maruti Udyog Ltd. 2002 (141) E.L.T. 3 (S.C.) 11.1 It is observed that as per the grounds of appeal of the revenue proposal for denial of the benefit of cum duty is on the ground that this is a case of clandestine removal. Therefore, the assessee is not entitled for cum duty benefit. We are of the view that the benefit of cum duty is governed by Statutory P .....

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