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TMI Blog2024 (7) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Central Tax Central Excise [ 2022 (3) TMI 399 - CESTAT, NEW DELHI ] in the matter of the appellant are identical. Infact, the period involved in the appeal decided by the Tribunal is from April, 2010 to March, 2014, while the period involved in the present appeal is from April, 2014 to March, 2015. The decision of the Tribunal which has been relied upon by the Commissioner (Appeals) would, therefore, govern the issues raised in this appeal. It cannot be doubted that the dispute in the present appeal is identical to the dispute raised in the appeal decided by the Tribunal. In view of the decision of the Tribunal in the matter of the appellant itself, the present appeal filed by the department deserves to be dismissed and is dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, according to the department, the value of the goods cleared or sold by the Khyati Ispat to the related party should have been 110% of the cost of production or the cost of manufacture of such goods. 4. Accordingly, a show cause notice dated 07.02.2019 was issued to Khyati Ispat proposing demand of central excise duty under section 11A(4) of the Central Excise Act. The Joint Commissioner, by order dated 28.07.2021, confirmed the demand. Feeling aggrieved, Khyati Ispat filed an appeal before the Commissioner (Appeals), which appeal has been allowed by order dated 25.01.2023 and the order passed by the Joint Commissioner has been set aside. The relevant paragraphs of the said order passed by the Commissioner (Appeals) will not only clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges have been brought in w.e.f. 2013. As per Rule 10(b) when goods are sold to inter-connected undertakings, as per sub-clause (i) of sub-section 3 of Section 4 of the Act but is not related as per sub-clause (ii) to (iv) the value shall be determined as if they are not related persons for the purpose of sub-section (1) of Section 4 of the Central Excise Act, 1944. 12. I further find that in the identical issue of the appellant itself for the earlier period April 2010 to March 2014, the Principal Commissioner, CGST Central Excise, Raipur in his Order-in-Original No.RPR/EXCUS/000/COM/CE/022/2019 dated 15.05.2019 had dropped the demand of Rs.2,85,26,865/- and confirmed the demand of Rs. 42,64,132/-. The appellant had filed appeal in the CESTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order confirming the demand of Rs. 54,26,469/- is not sustainable in law. As the demand itself is not sustainable, the question of recovery of interest and imposition of penalty does not arise. Held Accordingly. (emphasis supplied) 5. It is seen from the aforesaid order that the Commissioner (Appeals) has relied upon the decision rendered by the Tribunal on 02.03.2022 in M/s Khyati Ispat Private Limited (Rolling Mill Division) vs. Principal Commissioner, Central Tax Central Excise [Excise Appeal No. 52120 of 2019 decided on 02.03.2022]. 6. Shri Bhagwat Dayal made submissions on behalf of the department and Shri Ashish Vaish, learned Chartered Accountant made submissions on behalf of the respondent. 7. It is not in dispute that the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is a subsidiary of M/s Ashutosh Structures Pvt. Ltd. In view of these facts, we find that the assessee as well as the buyer Ashutosh are controlled by the same persons Virender Kumar Agarwal and Basant Kumar Agarwal. When these facts were disclosed by the assessee in its own balance sheets, we find no reason to accept the contention of the assessee and that they are not inter-connected undertakings in these appeals before us. We, therefore, find that the assessee and M/s Ashutosh are inter-connected undertakings in terms with Section 4 (3) (b) (i) of the Act. 21. The next question is whether the assessee and M/s Ashutosh are also related persons in terms of clause (ii) or (iii) or (iv) of Section 4 (3) (b). 22. We, find that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e called relatives in terms of that Act. In this case, the assessee is a company and the buyer is a Proprietor firm owned by another company. Neither the assessee nor the buyer is an individual‟ and, therefore, they cannot be relatives. Hence, they cannot be related persons as per clause (ii) of section 4 (3) (b). Clause (iii) to section 4 (3) (b) applies to cases where the buyer is a relative and the distributor of the assessee or the sub-distributor of such distributor. There is no allegation that the distributor is the distributor or the sub-distributor of the assessee in this case. Therefore, the assessee and the buyer Ashutosh cannot be related persons as per clause (iv) to Section 4(3)(b). 25 . To conclude, while we find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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