TaxTMI 
TaxTMI 
2009 (7) TMI 354
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....als), Mangalore and the Appeal No. 488/2008 is filed by the assessee, M/s. SVM Nett Project Solutions (P) Ltd. (hereinafter referred to as SVM) against the Order-in-Revision, passed by the Commissioner of Central Excise and Customs, Belgaum, both against the same order of the original authority. We first take up the appeal filed by the Revenue. Appeal No. 255/2007 2. Vide the impugned Order-in-Appeal No. 121 /2007, dated 31-8-2007, the Commissioner (Appeals) vacated the demand of interest and penalties imposed on the respondents under Section 76 and 77 of the Finance Act, 1944. The appeal seeks to restore the demand of interest and penalties in terms of the order of the Original authority. The facts of the case are the respondents, SV....
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....had not occasioned by any mala fide act of omission and commission with intention to evade payment of tax on the part of SVM. Relying on several judicial authorities, the appellate authority found that no interest was payable by the respondents. 3. The appeal seeks to restore the demand of interest and penalties vacated on the grounds that the Commissioner (Appeals) had erred in not relying on the judgments of the Tribunal in the case of L & T v. CCE, Mumbai [2003 (61) E.L.T. 827 (Tri.-Mumbai) and CCE, Delhi v. Toshi Auto Inds. Ltd. [2005 (183) E.L.T. 48 (Tri.-Del.) Reliance is also placed on the following case laws:- (i) CCE, Delhi v. Machino Montell (I) Ltd. [2006 (4) S.T.R. 177 (P&H) = 2006 (202) E.L.T. 398 (P&H) (ii) M/s. Sai M....
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....posing penalty under Section 78 of the Act, taking recourse to provisions of Section 80 of the Finance Act. The Commissioner (Appeals) concurred with the original authority and ordered that in the facts of the case the respondents were entitled to waiver of penalty under Section 76 and 77 of the Act. Relying on the following case laws, the Commissioner (Appeals) found that no interest was recoverable from the Respondents:- (i) 2006 (3) S.T.R. 333 (Tri.-Bang.) - Mass Marketing and Advertising Service Pvt. Ltd. (ii) CESTAT Bangalore Final Order No. 1378/2006, dated 31-8-2006 - M/s. Shakti Motors. (iii) 2005 (188) E.L.T. 334 (Tri.-Chennai) - Sri Selvakumar Textiles (iv) 2005-TIOL-155-HC-MAD-CX- Jkon Engineering Pvt. Ltd. 5.We fi....
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.... the issue of Show Cause Notice. In all these cases, the assessee had attempted to evade excise duty and paid the same on the evasion being detected. We find that these case law do not advance the case of the Revenue. 6. As regards the vacation of the demand of interest as well as penalty, the Commissioner relied on the decisions of the Tribunal in the cases of Mass Marketing and Advertising Services Pvt. Ltd. (supra), M/s. Shakti Motors (supra), Sri Selvakumar Textiles (supra) and the judgment of the Hon'ble Madras High Court in the case of Jkon Engineering Pvt. Ltd. (supra). The Revenue does not explain how these case laws are not applicable to the facts of the case. Moreover the impugned activity was not classifiable under BAS at ....
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....ROM, transportation and feeding to processing plant/CS & GSP. (iii) Drilling and Blasting. (iv) Transportation and feeding of over size materials to respective processing plants/to over size stock within the mine area. (v) Operation and Maintenance of Gravity screens and crushing & screening plant. (vi) Raising of Calibrated Ore and BHQ. (vii) Shifting of Calibrated ore, BHQ, Fines, etc., materials to the respective places and dumps. (viii) Keeping fines percentage below 5% in the Core from crushing and screening plant and below 10% in gravity screens. (b) The following finished outputs of C-ore/BHQ has to be produced from the respective plant and machinery: (i) Crushing and Screening plant: 15,000 MTs per month. ....