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2023 (4) TMI 930

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....tification No. 53/97-Cus dated 03.06.1997; they were also procuring the goods from indigenous sources. An investigation was initiated against M/s Punjab Exports and on conclusion, a show cause notice, dated 06.06.2003, was issued alleging diversion of imported/indigenous goods procured duty free. The show cause notice proposed confirmation of duty of Rs. 5,62,20,888/- along with interest, penalties on various persons and a redemption fine on the goods of value of Rs. 8,16,67,820/-, allegedly liable for confiscation, was imposed. The show cause notice was adjudicated by Order No. 77/CE/2004 dated 28.10.2004. On an appeal filed by M/s Punjab Exports, this Tribunal vide Final Order dated 24.08.2006 remanded the matter back for cross examinatio....

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.... notice clearly mentions that M/s Kansal Texo Tubes (P) Ltd is a 100% EOU; learned Commissioner could have got the fact verified instead, he blindly accepted the contention of the respondent on the basis of copy of such invoices; it is evident from the proceedings before Ahmedabad Bench of this Tribunal in the case of M/s Kansal Texo Tubes (P) Ltd vs. Commissioner of CE & Customs, Surat reported in 2015-TIOL-2962-CESTAT-AHMEDABAD that M/s Kansal Texo Tubes (P) Ltd is a 100% EOU; thus the entire edifice built upon wrong calculation on an approximate ratio based on wrong facts, falls flat. He further submits that the Hon'ble Apex Court in the case of Commissioner of Customs (Import), Mumbai vs. Dilip Kumar & Company reported in 2018 (361) ELT....

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....the entire calculation by the adjudicating authority on the duty liability were arrived on the basis of the presumption that M/s Kansal Texo Tubes (P) Ltd was not a 100% EOU; as a result of which he concluded the ratio of imported/indigenous raw material to be 39.31:60.19. When the very basis of the calculation is wrong, we find that there is no way, such figures and calculation can be upheld. On this point alone, we find that the calculations arrived at by the adjudicating authority are not based on any factual matrix and therefore, are incorrect. To this extent, we are inclined to accept the contention of the Revenue and the submissions of learned Authorised Representative. 5.2 We also find that learned adjudicating authority has not exa....

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....ntral Excise or Deputy Commissioner of Central Excise is satisfied that the said goods, including software, rejects, scrap, waste or remnants, - (a) being cleared for home consumption, other than scrap, waste or remnants are similar to the goods which are exported or expected to be exported from the units during specified period of such clearances in terms of Export and Import Policy, (b) the total value of such goods being cleared under paragraph 6.8 of the Export and Import Policy, for home consumption from the unit does not exceed 50% of the free on board value of exports made during the year (starting from 1st April of the year and ending with 31st March of next year) by the said unit; and (c) the balance of the production of t....

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....e Form IV Register on the basis of submissions of the respondents. However, it is quite clear in para I(2) on page 5 of show cause notice that such adjustment of 4000 kgs has been resorted to by the respondents twice and therefore, the balance was shown as 22650 kgs instead of 26650 kgs; thus we find that on this account also, learned adjudicating authority is incorrect in calculation. 5.4 Coming to the imposition of penalties, we find that learned Commissioner has imposed penalty only on Shri Vinod Kumar Garg, proprietor of M/s Annchal Export, Ludhiana and dropped penalties on other noticees; we find that the reason given by the adjudicating authority for not imposing penalties on Shri Harbhajan Singh Sandhu, Shri Sushil Kumar Sharma, Shr....