TaxTMI 
TaxTMI 
2010 (7) TMI 459
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....nst order-in-original No. 10/D-II/08 dated 20-6-08 passed by the Asstt. Commissioner, Central Excise Division-II, Faridabad by which a duty demand of Rs. 1,93,055/- had been confirmed against the Appellant alongwith interest under proviso to Section 11A(1) of Central Excise Act,1944 and penalty of equal amount had been imposed on them under Section 11AC of Central Excise Act. There is 10 days delay in filing of the appeal for which the Appellant have filed an application for condonation of delay on the ground as mentioned in their application. Looking to the grounds on which the condonation of 10 day's delay is sought, the same is condoned. 2. Though this matter was listed today for hearing of stay application and condonation of del....
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....ound that the appellant had not disclosed to the Department the fact that they had charged an amount of Rs. 11,82,936/-, the non-inclusion of which in the assessable value resulted in short payment of Central Excise duty amounting to Rs. 1,93,055/-. The show cause notice was adjudicated by the Asstt. Commissioner vide order-in-original dated20-6-08by which the entire duty demand was confirmed under proviso to Section 11A(1) of Central Excise Act,1944 alongwith interest on this duty. The Asstt. Commissioner also imposed an equal amount of penalty on the Appellant under Section 11AC. On appeal to Commissioner (Appeals), the appeal was dismissed by the Commissioner (Appeals) vide order-in-appeal dated27-10-09, against which the present appeal ....
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....iew had been taken by the Hon'ble Supreme Court in the case of International Auto Ltd. v. CCE, Bihar reported in 2005 (183) E.L.T. 239 (S.C.) wherein it was held by the Hon'ble Supreme Court that the Appellants are not liable to pay duty on the inputs supplied by final product manufacturer since they had not taken Modvat credit in respect of such inputs; that ratio of this judgment of the Hon'ble Supreme Court is applicable to this case and that in view of this, the impugned order is not correct. 4.2 Shri B.L. Soni, the learned DR, defending the impugned order, pleaded that the tools had been purchased by the Appellant for producing P-92 cabins for M/s. JCB as per their order and since the tools had been exclusively used in the manu....
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....d. He also pleaded that since the Appellant had never disclosed to the Department that the value of the tools had been fully recovered from the customers; the Appellants are guilty of suppressing this vital fact and hence, longer limitation period for recovery of short paid duty is invokable and for the same reason, penalty under Section 11AC equal to the duty short paid would be imposable on the Appellant. Learned DR cited the Larger Bench judgment of the Tribunal in the case of Mutual Industries Ltd. v. CCE, Mumbai reported in 2000 (117) E.L.T. 578 (Tri.) wherein it was held that the proportionate cost of moulds & dies manufactured by the Appellant and sold to the customers would be includible in the assessable value of the goods when suc....
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....ant, in the sense that JCB had purchased these tools for use in the manufacture of P-92 cabins and charged this amount from M/s. JCB, the cost of these tools would have to be treated as additional consideration flowing to the appellant and hence the same would be includible in the assessable value. However, the cost included in the assessable value would be amortised cost, while in this case the duty on the entire amount charged by the Appellant from JCB has been demanded. The duty to be demanded from the Appellant, therefore, has to be re-worked on this basis. 6. As regards the longer limitation period, we find that since the Appellant had not disclosed the relevant fact regarding the charging of tooling charges from their customer....