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TMI Blog2014 (3) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption, in subsequent months, it got compensated by much higher percentage of duty payment through cenvat credit varying from 98% to 100% and during those months, the appellant have availed almost negligible exemption. In view of this, this has to be treated as revenue neutral case and as such, there is merit in the appellant’s plea that there was no intention to avail higher quantum of exemption. As regards, duty demand of ₹ 18,18,507/- on the value of the corrugated boxes applied by M/s. Vishal Industries free of charges, we are of prima facie view that since tin containers were marketable as such, the cost of corrugated boxes supplied by M/s. Vishal Industries would not be includible in the assessable value. Thus, on both the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of tin containers chargeable to central excise duty. They receive printed tin sheets from Asian Containers, Daman. The unit of the appellant is located in the area specified under Notification No. 56/2002-C.E., dated 14-11-2002 and accordingly, during the period of dispute i.e. from June, 2008 to Feb. 2012, they were availing exemption under Notification No. 56/2002-C.E. The tin containers manufactured by the appellant were being cleared to M/s. Vishal Industries situated in the same building. It was also seen that while the appellant unit - M/s. Vinayak Industries is a partnership concern of Anantnidhi Trust and Shri P. L. Patel, M/s Vishal Industries is also owned by the same partners. In terms of the Notification No. 56/2002-C.E., a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for recovery of wrongly taken refund amounting to ₹ 1,52,50,155/- under Notification No. 56/2002-C.E., along with interest thereon under Section 11AB and also for imposition of penalty on them under Section 11AC. This show cause notice also sought imposition of penalty on M/s. Vishal Industries who were receiving the tin containers from M/s. Vinayak Industries. 3. The show cause notice was adjudicated by the Commissioner, Central Excise, Jammu Kashmir vide order-in-original dated 3-6-2013 by which the Commissioner confirmed demand of erroneous refund of ₹ 10,85,040/- against M/s. Vinayak Industries along with interest thereon under Section 11AB and dropped the remaining demand of ₹ 1,23,46,608/- on this count. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if due to time gap between the receipt of the goods and availment of cenvat credit in some months, there was lesser utilization of cenvat credit for payment of duty and more payment of duty through PLA and higher quantum of refund, this was compensated by more payment of duty through cenvat credit and much less payment of duty through PLA and much lesser quantum of refund under the notification, that as such, situation is revenue neutral, that as regards the duty demand of ₹ 18,18,570/- on account of additional consideration of receipt of corrugated boxes from Vishal Industries, even if the appellant paid this duty, they would have been paid through PLA, and the same would be available as refund and as such, the appellant have nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Industries, it is seen that there are two allegations against them. The first allegation is that they have availed higher quantum of exemption under Notification No. 56/2002-C.E., dated 14-11-2002 by deferring the availment of cenvat credit, as a result of which lesser duty was paid through Cenvat credit resulting in higher quantum of exemption under the notification. However, on going through the Chart given in Para 7 of the show cause notice regarding month-wise percentage of duty payment through PLA, it is seen that though during most of the months, the same has been varying from 38% to 41%, in some months - March, 2011, June, 2011 and March, 2012, the same was 2% and 0%. Prima facie, from this data, it is clear that even if during ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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