9911796707
TMI Blog2018 (4) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice issued prior to finalization of provisional assessment, when admittedly the assessees were under provisional assessment scheme, is ab initio void - SCN not maintainable. The concerned Adjudicating/Competent Authority directed to finalize provisional assessment of M/s Venugopal Engineering Ltd., now known as M/s Electroparts India Private Ltd. and M/s Domebell Electronics India Private Ltd., with effect from 01/03/1994. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... VIL. The CTVs manufactured were sold in wholesale trade mainly to VIL. 2.2 DEIPL was not undertaking any trade activity at their factory, certain trading activity was undertaken at their branches. * DEIPL had a general agreement with VIL for the sale of CTVs on principal to principal basis. DEIPL had been manufacturing CTVs for the last several years and had developed their technology for the manufacture of CTVs on their own. * Besides, Videocon brand, DEIPL have also been manufacturing and clearing CTVs under different brand names, like Narita, President, etc. * The CTVs were subjected to duty at specific rate up to March, 1994. After March, 1994, they were subjected to duty on ad valorem basis. * The Appellant was regularly fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0%, however they failed to produce any evidence regarding the payment of Sales Tax @ 10%. On account of transportation charges, no proof was submitted. * During the period, March, 1994 to February, 1995, M/s EIPL sold 15382 nos. of CTVs sets to M/s VIL at lower price. More than 90% of the sale were made by EIPL in UP only and the party was not required to pay any sales tax in respect of sale made within the State of UP. Thus for March, 1994 to February, 1995, duty works out to be ₹ 41,21,137/- and for the period March, 1995 to December, 1995 in respect of 12,643 no. of CTV sets cleared, the duty liability works out to be ₹ 38,10,406/- * M/s EIPL paid an amount of ₹ 52,89,768/- (Rs. 37,74,858/- voluntarily and an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal vide Final Order dated 23/07/1999 remanded the matter to the Commissioner with the direction for examination of the records in detail and also examine Appellants' contentions about provisional assessment and pass appropriate order. 8. Order-in-Original dated 27/02/2003 was passed, whereby the Ld. Commissioner reconfirmed the demand of ₹ 9,98,892/- on the Appellant DEIPL and also imposed penalty of ₹ 10,00,000/-. However, the ld. Commissioner gave the benefit of deductions of Sales Tax and Transportation to M/s DEIPL. Further, Ld. Commissioner confirmed demand of ₹ 79,31,543/- against EIPL and imposed penalty of ₹ 80,00,000/- on M/s. EIPL. Further, he also confirmed penalty of ₹ 50,00,000/- on M/s VIL. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11A of the Act was issued before finalization of provisional assessment. The Hon'ble Court relying on its earlier ruling in the case of Serai Kella Glass Works Pvt. Ltd. Vs Collector of Central Excise, Patna [1997 (91) E.L.T. 497=(1997) 4 SCC 641] observed that "Section 11A deals with recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. The proceedings under Section 11A have to be commenced with the show cause notice issued within 6 months from the relevant date. "Relevant date" has been defined under Subsection 3(ii) to mean in a case where duty of Excise is provisionally assessed under this Act or the Rules made thereunder, the date of adjustment of duty after the final ..... X X X X Extracts X X X X X X X X Extracts X X X X
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