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TMI Blog2015 (12) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ges, but in respect of period prior to February 2008 there is no explanation for non-payment of duty. In any case the question of limitation is a mixed question of facts and law which has to be examined at the stage of final hearing. Therefore, so far as the duty demand of ₹ 22,83,289/- against Namo is concerned, we are of the view that this is not the case for total waiver - Partial stay granted. - Excise Stay Application Nos. 717-718, 731, 871-872, 1038, 1060 and 1175 of 2012 in Appeal Nos. 600-601, 614, 715-716, 849, 867 and 951 of 2012 - Stay Order No. 51410-51417/2015 - Dated:- 13-4-2015 - Shri Rakesh Kumar, Member (Technical) And Shri S.K. Mohanty, Member (Judicial) For the Petitioner : S/Shri A.C. Jain, Bhasin Sethi and Rajesh Kumar, Advocates For the Respondent : Shri Pramod Kumar, Authorized Representative (Jt. CDR) ORDER Per. Rakesh Kumar :- All the appeals arise out of order-in-appeals No. 181-188/CE/APPL/DLH-IV/2011 dated 07/12/11 passed by Commissioner, Central Excise (Appeals), Delhi. The facts leading to filing of these appeals are, in brief, as under. 1.1 M/s Namo Alloys Pvt. Ltd., Faridabad (hereinafter referred to as Namo) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-original dated 01/6/11 by which the Adjudicating Authority (a) confirmed the Cenvat credit demand of ₹ 13,68,256/- against Namo under Rule 14 of the Cenvat Credit Rules, 2004 readwith proviso to Section 11A (1) of Central Excise Act, 1944 alongwith interest on it under Section 11AB and beside this, while imposed penalty of equal amount on Namo under Rule 15 (2) of Cenvat Credit Rules, 2004 readwith Section 11AC of Central Excise Act, 1944, imposed penalty of ₹ 6,39,000/- each on M/s Vardhman Sales Agency and his authorized signatory Shri Amit Kumar Sharma, penalty of ₹ 2 lakhs each on M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd. and penalty of ₹ 13,68,236/- on M/s V.K. Metal, Jammu and (b) confirmed duty demand of ₹ 22,83,289/- against Namo in respect of clearances of aluminium ingots by them to Havells alongwith interest thereon under Section 11AB and beside this, while imposed penalty of equal amount on Namo under Section 11AC, imposed penalty of ₹ 36,51,545/- on Shri Neeraj Kumar Jain, Director of Namo under Rule 26 of Central Excise Rules, 2002 and another penalty of ₹ 2,00,000/- on Havells under Rule 26 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated by the Commissioner of Central Excise, Jammu and in respect of appeal alongwith stay application filed by M/s V.K. Metal against that order of the Commissioner, the Tribunal vide stay order No. 50836-50839/2015 - EX (DB) dated 05/02/2015 has waived the requirement of pre-deposit of duty demand by M/s V.K. Metal taking prima facie view that the allegation of issue of bogus invoice against M/s V.K. Metal without any manufacturing activity is not sustainable, that in view of this, the Department cannot allege that the appellant have taken Cenvat credit in respect of invoices of copper ingots from M/s V.K. Metal/Vardhman Sales Agency without receiving any material, that, therefore, the duty demand of ₹ 13,68,256/- is also not sustainable and for the same reason no penalty is imposable on Namo or on M/s Vardhman Sales Agency on this count, that as regards penalty on transporters M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd., the same would also not be sustainable and, hence, the transporters have also prima facie case in their favour. It was, therefore, pleaded that the requirement of pre-deposit of the duty demand and Cenvat credit demand by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Namo, Shri Amit Kumar Jain Sharma, M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. and M/s V.K. Metal Works, Jammu. 7. Coming to the duty demand of ₹ 22,83,289/- against Namo, this duty demand is on the ground that during the period from January 2007 to November 2009 Namo has manufactured aluminium ingots on job work basis for Havells out of the aluminium scrap received by them and they were not eligible for exemption under Notification No. 214/86-CE for the reason that s Havells were availing full duty exemption under Notification No. 50/03-CE. The defence of Namo is that during this period they were under bonafide belief that their activity would attract service tax and for this reason only they had obtained service tax registration and from February 2008 onward they had paid service tax on the job charges. It is also pleaded that since during period from February 2008 Namo were paying service tax on the job charges and in this regard they were also filing the ST-3 returns, the Department was aware of their activity and hence extended period under proviso to Section 11A (1) would not be applicable. 7.1 Coming to the question as to whether the activity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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