TaxTMI 
TaxTMI 
2025 (2) TMI 208
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.... already reversed the same (ii) I confirm the demand & order for recovery of duty short paid amounting to Rs.3,086/- (Rs Three thousand and eighty six only) under Section 11A (4) of Central Excise Act, 1944. (iii) I order for recovery of Rs.30,452/- (Rs Thirty thousand four hundred and Fifty two only) refunded to party in excess of rebate available to them for clearance of good to NSEZ from them under Section 11A of Central Excise Act, 1944. (iv) I order for recovery of interest at the appropriate rate on the above amount at So No (i) to (iii) above under Section 11AA of the Central Excise Act, 1944 as applicable. (v) I impose an equal amount of penalty listed above in terms of Rule 15 (2) of Cenvat Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944 for contravention of various provisions of Central Excise All, 1944 and Central Excise Rules made there under, as discussed, supra. The dues so adjudged be paid forthwith. 2.1 During the course of audit of the records of appellant for the period 2010-11 to 2103-14 it was observed that the appellant was engaged in manufacture and clearance both dutiable goods (plastic moul....
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....ted goods appears sufficient as required under rule (2) of rule 6 of Cenvat credit rules 2004. Copy of record maintained was submitted to the adjudicating and lower appellant authority. These record are not considered proper by the authorities for the purpose of rule 6(2) of Cenvat credit rules and demand is made on the exempted goods as per legal provisions which is not correct, In the face of fact that appellant maintained separate record for input used in the manufacture of exempted goods, the demand made is not legal. ⮚ The finding that mere furnishing a list of raw material by the appellant does not prove that during the relevant period they have indeed maintained separate account is not proper and correct. ⮚ The account of Purchase of raw material for exempted goods was maintained from 23.08.2010 to 31.03.2014 copy of which was submitted to original authority as well as to appellant authority but both the authority have not relied upon on the documents and have made demand of duties which is not justified and legal. ⮚ the observation of the original Authority in para 1.7 that document showing ....
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....emand of Rs. 3,086/- it is submitted that a credit note was issued to M/s Luxor International, limited for printing work to be under taken at their end appellant has no facility of printing . The price of goods cleared include printing charges therefore demand of duty as short paid is not justified ⮚ demands made in the order are not correct and legal and the impugned order deserve to be set aside. 3.3 Learned authorized representative reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Tribunal has vide Final Order No.70897/2018 dated 15.05.2018 remanded the matter back to original authority with following observations: 3. During the course of adjudication as also before appellate forum the appellant took a categorical stand that they were maintaining separate Cenvat accounts for dutiable as well as exempted goods. They also contended that wherever common accounts were maintained they had reversed the amount availed on the common inputs, which were also used for the manufacture of exempted products. 4. While deali....
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....ds. They also enclosed the details related to purchase of raw materials used in exempted goods as evidence that they were maintaining the separate records for the exempted goods. However on reconciliation of the chart and documents produced by the party with the ER-3 returns, a mismatch was noticed in the data showing purchase of raw material for exempted goods from 31.08.2010 onwards, whereas as per ER-3 they have shown to have produced quantity of exempted goods in July 2010. Thus the documents provided by them were not complete and reliable. And as such, the party vide their letter dated 29.10.2014 have reversed Rs. 36,717/- (Under Protest) on account of credit taken of service tax in respect of proportionate services of security availed in respect of exempted product. (ii) In view of the above, I find that the Central Excise Audit team audited the records of the party on 16.09.14 and 16.09.14 for the period 2009-10 to 2013-14 and have pointed out the issue that the party have not been m....
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....3 are also enclosed herewith. List of ball pen part sold to Ms. Luxor during the period 01.04.2013 to 31.03.2014 and List of ball pen sold to Ms. Luxor during 01.04.2013 to 31.03.2014 is also enclosed. Entry of ledger account of both the companies is enclosed to show that the purchase and sales transaction were genuine", As regard, the list of sale and purchase, I have already discussed in the above lines. As far as the question, of Agreement, on examination of the said agreement, I find that nothing in relation to availment of cenvat credit is referred in the said agreement whether they may avail or not, if the same is received by them. (iv). In view of the above, I find that the party has nothing in reference to their claim that they were maintaining separate account of the raw material used in exempted goods as well as dutiable goods as well as no CENVAT Credit was availed by them on raw material which was used in the manufacturing of exempted goods and I find that the party is only trying their best to mislead the adjudicating authority/ department in the guise of submitting copy of documents as provided by them with their defense reply referred above, being not ....
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.... 3.12 The party contested the views taken by the audit vide letter dated 15.12.2014 stating that_ against the job work which needed to be done by them, a part of work was done by M/s. Luxor International Ltd on behalf of them on the sold goods which was manufactured by them, hence they raised credit notes. I find that it is not sustainable and acceptable as they have incurred expenses of job work got done by M/s. Luxor International Pvt. Ltd. on the goods sold to M/s. Luxor International Ltd. The extra expenditure incurred by M/s. Luxor International Ltd on behalf of the party was subsequently compensated by the M/s. Luxor International Ltd by way of book adjustment i.e issuing of credit notes, hence this amount so compensated by way of credit notes has escaped from the valuation of goods under Section 4 of Central Excise Act 1944 at the time of removal of goods. This resulted in short payment of duty of Rs.3,086/- which is also liable to 'be recovered from them. 3.13 I further find that they have cleared goods to M/s. Associated Lighting Co. and M/s INDETESH both of NSEZ, Noida for deemed Export on payment of duty and claimed rebate thereof under Notificati....
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....ELI 433 (Tri, Mumbai), CCE Bangalore-III Vs Presscom Products-2011 (268) ELT 344 (Karnataka) and Neptune Spin Fab Pvt. Ltd. Vs CCE Ahmadabad 2009 (241) ELT 467 (Tri Ahmd.) Once the issue about the correctness of the demand notice is concluded as above, the payment of interest thereon in terms of Section 11AA of Central excise Act 1944 respectively becomes inevitable. 3.17 I find that interest at the appropriate rate on the paras as discussed above is liable to be recovered under Section 11AA of the Central Excise Act, 1944 as applicable. 3.18 As regards the imposition of penalty the relevant provisions of Rule 15 of Cenvat Credit Rules 2004 read with Section 11 AC of the Central Excise Act 1944 are quoted as under. Rule 15 of CCR 2004 General Penalty -whoever contravenes the provisions of these rules for which no penalty has been provided in the rules, he shall be liable to a penalty which may extend to five thousand rupees Section 11 AC- Penalty for short levy or non levy of duty in certain cases - Where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or an....
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....hem with M/s Luxor International Pvt. Limited, New Delhi which requires the appellant to source directly component and raw materials from such party, as are approved by M/s Luxor International Pvt. Limited, New Delhi. 8. In this regard, after assuming claim of the appellant that they had not availed cenvat credit on the said list of raw material as correct, question before me to adjudicate is as to whether the said list can be termed as maintenance of separate records in terms of Rule 6(2) of CCR 2004. In this regard, I observe that the said list of raw materials was also submitted by the appellant before the adjudicating authority who after going through the said list has categorically pointed out that a mismatch was noticed in the data showing purchase of raw material for exempted goods from 31.08.2010 onwards, whereas as per ER-3 they have shown to have produced quantity of exempted goods in July 2010. Thus the documents provided by them were not complete and reliable. And as such they had vide their letter dated 29,10.2014 have reversed Rs. 36,717/- (under protest) on account of credit taken of service tax in respect of proportionate services of security availed in res....
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....already been given in negative supra. I also find that the appellant at the same time is taking two mutually antagonistic approaches in as much as on the one hand they are making averments that the department has not specified the common inputs/ services being used and in the same breath it is submitted by them that they were maintaining separate records in respect of dutiable and exempted goods Accordingly, I find no merits in the argument put forth by the appellant. 11. As far as recovery of excess refund claim of Rs. 30,452/- is concerned find that in the impugned 010 it is categorically hold by the appellant that the appellant had cleared goods to units situated at NSEZ Noida which were returned back and the appellant had availed the Cenvat Credit of duty paid earlier on such clearances but simultaneously have also claimed rebate of the same amount resulting in excess cash payment of rebate for Rs. 30,452/-. In the appeal memorandum, appellant has merely stated that the credit in question was correctly availed by them and the said amount does not relate to rebate claim. However, no supporting document/ evidence to this effect is submitted by the appel....