2010 (8) TMI 797

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....d the demand of duty both on merits and on the ground of limitation. However, at this stage, the ld. Counsel for the appellant submits that the challenge against the demand of duty on merits is not being pressed in view of the settled position of law that the amortized value of moulds and dies supplied free of cost by the buyer is liable to be included in the assessable value of the final products manufactured by making use of such moulds and dies. In this connection, the ld. Counsel has fairly invited our attention to the decision of the Tribunal's Larger Bench, in Mutual Industries Ltd. v. CCE, 2000 (117) E.L.T. 578 (Tri.-LB). The ld. Counsel however submits that the appellant has a strong case against the above demand of duty on the grou....

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.... the Commissioner (Appeals) against the order of adjudication was rejected. Hence the present appeal of the assessee against the appellate Commissioner's order. The challenge to the demand of duty, at this stage, is solely on the ground of limitation. The ld. Counsel has argued that the appellant did not suppress any fact before the department with intent to evade payment of duty. There was no reason for such suppression as, according to the appellant's understanding of the provisions of Section 4 of Central Excise Act, they were not liable to include the value of the moulds or any part thereof in the assessable value of the final products cleared to Telco. It is further submitted that, during the material period, there was confusion as to ....

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..... The ld. SDR has, at the outset, submitted that the plea of revenue neutrality cannot be raised unless the benefit of Modvat credit referred to by the Counsel would accrue to the assessee themselves. In this connection, he has relied on Jay Yuhshin Ltd. v. CCE, New Delhi - 2000 (119) E.L.T. 718 (Tribunal-LB),' wherein it had been held as under : "With particular reference to Modvat scheme (which has occasioned this reference) it has to be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee's manufactured goods". 4. Referring to other arguments of the Counsel, the ld. SDR submits that, even after the Tribunal'....

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.... Tribunal came, admittedly, after January 1999. Having made an endeavour to derive benefit out of the so-called "confusion arising out of conflicting decisions of the Tribunal", the appellant cannot turn around and say that they were not aware of the Tribunal's decision in Flex Industries case. The facts and circumstances of this case are explicit enough for us to hold that the appellant deliberately excluded the amortized cost of moulds (supplied free of cost by Telco) from the assessable value of the excisable goods supplied to Telco (buyer) even after the Tribunal's decision (1997) in Flex Industries case, which was in favour of the Revenue. It appears to us that this conduct of the appellant was wilful with intent to evade payment of ap....