2016 (8) TMI 936

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....onfirmed demand of Rs. 70,51,800/- along with imposition of penalty upon the assessee and confiscation of the goods seized. However, as he has also held that various units to whom notice were issued for clubbing of their clearances, cannot be held to be related to each other and has accordingly dropped the proceedings in respect of clubbing of clearances, Revenue is in appeal. 2. After hearing both sides duly represented by Shri Naveen Mullick, learned Advocate appearing for the appellant- assessee and Shri Yogesh Agarwal, learned DR appearing for the Revenue, we find that the appellants M/s. Thermoking has a factory in Naraina Industrial Area, New Delhi and are engaged in the manufacture of domestic electrical appliances like geysers, w....

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....ustries. The said gas compressor was procured by them free of duty and were shown to have been used in the manufacture of water cooler which water coolers were ultimately cleared by them under the cover of Central Excise documents. 5. The D-3 intimation were being filed by them with their Range and they were maintaining all requisite records and documents like RG 23 A register as also AR 3 forms etc. which is the requisite procedure for procuring the goods under Chapter X  of the Central Excise Rules. Investigations were made at the end of proprietary units of Ms Neera Khanna, which were engaged in the manufacture of air conditioner etc. 6. As a result investigations made by the Revenue, a view was entertained that the gas compre....

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....Tri-Del)] set aside the finding of clubbing of clearance between the proprietary units of the husband and wife. However, as regards the charge of clandestine removal of gas compressor to M/s. Flevel International and consequent manufacture of air conditioner by the said M/s. Flevel International, there was difference of opinion between two Members of the Tribunal. Whereas the Member (Judicial) held that there is no sufficient tenable and positive evidence in respect of said allegation, Member (Technical) was of the view that Revenue has proved their case in respect of 606 air conditioner held to be cleared without payment of duty. On matter going to the Third Member for resolving the dispute, view held by Member (Technical) was agreed upon.....

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....the manufacture of water cooler and stands cleared to others for further manufacture of Air conditioner. 10. As regards the assessee s appeal, we find that the demand of duty to the extent of around Rs. 70.51 lakh stand confirmed against them on the allegations and findings that 1022 pieces of gas compressor received by them at concessional rate of duty under Chapter X procedure from M/s. Kirloskar Brothers and Shreeram Refrigeration have not been utilized by them in the manufacture of water cooler. The present proceeding emanates out of the same set of facts and circumstances and same investigations and same statements which were the subject matter of the earlier proceedings against the same charges alleging that 1022 pieces of gas comp....

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....nd have been held to be insufficient to uphold the charges. The allegations in the present proceedings is in respect of same number of gas compressors i.e. 1022 procured by the assessee under Chapter X Procedure and alleged diversion which were the subject matter of the earlier proceedings. As such, we are of the view that in terms of Hon'ble Delhi High Court decision in the earlier proceedings, the allegation of diversion of 1022 pieces of gas compressor and the consequent demand of duty along with imposition of penalty cannot be upheld. Consequently, the confiscation of the seized goods is required to be set aside. Accordingly, we allow the appeal filed by the assessee by setting aside the demand of duty, imposition of penalty, as also co....