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TMI Blog2014 (7) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot amount to both service and manufacture and sale at the same time; it can be only one of the two. On this very ground alone, the impugned order cannot be prima facie sustained. Further, we observe that there is no evidence available on record with regard to the receipt of the consideration by the main appellant M/s FTPL and all the C&F Agents and Directors of the main appellant M/s FTPL have denied having received any money. Similarly, in the case of transaction with Rajendra Trading Company in the jurisdiction of Aurangabad Commissionerate, the Revenue has taken a view that the duty demand is not sustainable - appellants have made out a strong case in their favour for grant of stay - Stay granted. - Appeal No.E/89515 to 89521 & 895 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants are before us. 2. The stay applications were listed for hearing earlier on 17.2.2014 and request for adjournment was made on that date by the appellant. Accordingly, the cases were adjourned to 15.4.2014 with liberty to the Revenue to recover dues adjudged against the appellant in accordance with law. Thereafter, the Counsel for the appellant pleaded that due to unavoidable personal reasons, the appellant could not be present and accordingly, modification application was filed requesting was filed requesting for early hearing of the stay petitions and accordingly the stay petitions have been posted for hearing today. The modification applications for early hearing are allowed and the stay petitions are taken up for consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalties not only on the main appellant but also on the co-appellant. (ii) The learned Counsel submits that two parallel proceedings have been initiated by the department on the consideration amount of ₹ 5.8 crore alleged to have been received by M/s FTPL. The department vide show-cause notice No. V(T)15-26/Commr/ACB dated 5.9.2011 issued the notice to M/s RPL demanding Service Tax of ₹ 71,55,424/- on the consideration of ₹ 5.8 crore received by treating the entire transaction as a service transaction falling within the taxable service of Business Support Services'. The said notice was adjudicated and vide order dated 4.12.2012, the Commissioner of Central Excise Service Tax, Nashik classified the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o manufactured and sold by them. Shri R. Malpani, director of M/s SRPL has also not admitted before the authorities that he had paid any amount to M/s FTPL. In the absence of any documentary evidence and inculpatory statements of any of the people concerned, there is no evidence available on record to show that the receipt of ₹ 5.8 crore by M/s SRPL pertains to unaccounted receipt towards the manufacture and sale of branded tobacco by M/s FTPL through its C F Agents. In view of the above, the impugned order confirming the demand of excise duty on the consideration received of ₹ 5.8 crore alleged to have been received by the main appellant M/s FTPL is clearly unsustainable in law. (iii) As regards the amount of ₹ 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax demand and on the other they are treating the transaction as an excise transaction and on the same consideration received, excise duty demand of ₹ 4.6 crore (approx.) has been confirmed. The transaction cannot amount to both service and manufacture and sale at the same time; it can be only one of the two. On this very ground alone, the impugned order cannot be prima facie sustained. Further, we observe that there is no evidence available on record with regard to the receipt of the consideration by the main appellant M/s FTPL and all the C F Agents and Directors of the main appellant M/s FTPL have denied having received any money. Similarly, in the case of transaction with Rajendra Trading Company in the jurisdiction of Auranga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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