TaxTMI 
TaxTMI 
2010 (11) TMI 299
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellant under Section 11AC of the Central Excise Act, 1944 upheld vide order-in-appeal No. 302/CE/DLH/ 2009 dated 21-12-09 passed by Commissioner of Central Excise (Appeals), New Delhi. 2. The appellant are engaged in the manufacture of furniture and parts thereof chargeable to Central Excise Duty under sub-heading 9403 10 90 of the Central Excise Tariff. They are availing the benefit of SSI exemption under Notification No. 8/2003-C.E., dated 1-3-2003. On receipt of the information that the appellant are misusing the SSI exemption and evading the duty by under reporting the quantum and value of clearances for home consumption, the Jurisdictional Central Excise officers visited their unit by surprised on 19-11-2005 and checked their ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....earances for home consumption. According to the department, the total value of clearances made by the appellant during 2003-2004, 2004-2005 and 2005-2006 (upto 31-1-06) was Rs. 1,19,17,560/-, Rs. 2,32,19,168/- and Rs. 1,64,64,203/-respectively and while after availing full duty exemption in respect of clearances upto Rs. 1,00,00,000/-, the duty payable was Rs. 3,06,810/-, Rs. 21,57,368/- and Rs. 10,54,957/- respectively, the duty actually paid during these periods was nil, nil and Rs. 8,56,656/- respectively and thus the duty short paid during these years was Rs. 3,06,810/-, Rs. 21,57,368/- and Rs. 1,98,301/- totalling Rs. 26,62,479/-. It is in view of the above that a show cause notice dated 27th April 2006 was issued to the appellant for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or manufacture of the finished products for export and hence value of these clearance to 100% EOUs must be deducted from the total value of clearances made by the appellant during the respective years, that since as per the balance sheet, the total value of the clearances during 2003-2004, 2004-2005 and 2005-2006 was Rs. 1,00,24,614/-, Rs. 1,50,81,272/- and Rs. 1,01,86,897/- respectively, the net value of clearance for home consumption during these years were Rs. 84,74,071/-, Rs. 80,56,689/- and Rs. 99,94,070/- respectively, that even though the clearance to 100% EOUs were not against CT-3 certificates, since there is no dispute that the goods had been received by the 100% EOUs and used for the intended purpose, the same have to be treated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the buyers on the so called parallel invoices were same as those on the regular invoices, which also shows that the goods covered under the so called parallel invoices had not been cleared clandestinely without accountal in the Central Excise records, that in view of the above, neither any duty is recoverable from the appellant nor is there any case for imposition of penalty on them, that from the above, it is clear that the appellant have a strong prima facie case in their favour and in view of this, the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeal. 4.2 Shri Sunil Kumar, the learned Departmental Representative, opposed the appellant's plea for waiver from the requireme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ach of the three years 2003-2004, 2004-2005 and 2005-2006 (upto 31-1-06), the value of the clearances of the appellant for home consumption had exceeded the exemption limit of Rs. 1,00,00,000/- but while during 2003-2004 and 2004- 2005 no duty was paid and during 2005-2006 (upto 31-1-06) duty of only Rs. 8,56,656/- was paid, as against the total duty payable during these three years of Rs. 35,19,135/- and thus duty amounting to Rs. 26,62,479/- has been short paid, and that since the department has a strong prima facie case, there is no merit in the appellant's plea for waiver from the requirement of pre-deposit. 5. We have carefully considered the submissions of both the sides and perused the records. 6. During the period of dispute, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... had been cleared under these invoices and that the name of buyers on the parallel invoices are the same those in the regular invoices, no evidence in this regard has been produced. Moreover Shri Surya Kant's statement that under such parallel invoices the goods valued at about Rs. 40,00,000/- had been cleared, has not been retracted. 6.2 We also find that during each of the financial years there were clearances to 100% EOUs but not against CT-3 certificate and hence the same cannot be treated as exempt from duty under Notification No. 22/03-C.E., dated 31-3-03 and the value of these clearances also would have to be included while calculating the value of clearances during the year and these clearances would be liable to pay duty if....