TaxTMI 
TaxTMI 
TaxTMI 
2013 (7) TMI 1015
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....t appellant has been filing classification list as well as price list and everything was in the knowledge of the Revenue. The said order of the Commissioner was appealed against by the Revenue and the matter was remanded by the Tribunal for fresh adjudication. The present impugned order stands passed by the adjudicating authority in remand proceedings, confirming the demand against the assessee as also imposing penalties upon the appellants. 3. After hearing both the sides duly represented by Shri Anand Nainawati, learned advocate, appearing for the appllant and Shri Avinash Thete, learned DR, appearing for the Revenue, we note that admittedly the goods manufactured by the appellant were being sent to their own unit at Bombay. The duty paid by the appellant was being availed as modvat credit by the Bombay unit. It stands explained to us that the duty payments by Bombay unit on their final product was much more than the credit availed by them and during the relevant period they stand crossed Rs. 1 crore. The duty of Rs. 85.83 lakhs approximately now being confirmed against the Ahmedabad unit was available as credit to their Bombay unit and for further utilization for payment of dut....
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....s/concentrates and Modvat credit available to the assessee being identical, consequence of payment of excise duty after availing Modvat credit was Revenue neutral, in view of which confirmation of demand was not justified. " 5. By applying ratio of the law as available in the above referred judgments we find no justification in confirmation of demand for imposition of penalty against the appellant and set aside the same. Accordingly the impugned order is set aside and appeal allowed with consequential relief to the appellants. (Pronounced in Court on ____________) PER : B.S.V.. Murthy, Mr. 6. I have gone through the order proposed by the Learned Member (Judicial) and with utmost respect I find myself unable to agree with the conclusions reached therein. Hence I propose to pass a different order. 7. The facts have already been enumerated and the same are not reproduced. 8. Two issues arise for consideration in this case. When the goods are cleared by one of the units of a company to another unit of the same company for utilization in the manufacture of another final product and the duty paid on the first unit is utilized for payment of duty on the final product, whether duty d....
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....f the same person, question arises whether we can justify revenue neutrality when payment is made by a person to the government and when other person takes credit and uses it only because situation becomes revenue neutral. 11. When such is the situation, I am unable to understand why the government should not recover the amount from one unit when goods are cleared to another unit of the same factory when as per law, central excise duty is required to be discharged after payment of duty on the value determined at the time and place of removal. A relief from the statutory liability on the ground that the credit is available to the other unit and the government would be collecting the money and putting it in one pocket and putting the same money in another pocket later does not appear logical. Further we have to take note of the fact that there is no guarantee that the goods which have been cleared would reach the other unit definitely. Once the duty is paid, the appellant would be free to dispose of the goods whatever way he deems fit. There is no rule that goods should be sent to the same person to whom the same is invoiced and a fresh invoice can at any time be prepared and goods ....
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....trality. Therefore in a revenue neutral situation unless department is able to show suppression of facts/misdeclaration as provided under Section 11A, extended period cannot be invoked. Therefore whether extended period can be invoked or not has to be determined on a case to case basis. In this case: there is no evidence produced by the department to show that assessee had an intention to evade payment of duty by under declaring the value. Therefore extended period cannot be invoked in this case. 15. Once extended period cannot be invoked, penalty under Section 11AC also cannot be justified and sustained. 16. In such an event, the demand has to be limited to the normal limitation period which is attributable to mistake or error on either side and in such a case in terms of provisions of Section 11A, the demand would be sustainable for a period of six months as per the provisions of Section 11A. 17. I am conscious of the fact that judicial discipline requires that if there is a contrary decision laying down the law I would be bound by that. Therefore the judicial precedents cited by the learned advocate are required to be considered before I come to the conclusion as discussed ab....
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....at there should be no violation of any specific provision. In this case when the goods were undervalued at the time of clearance, there was definitely a violation of the provisions of Section 4 of Central Excise Act, 1944. Therefore this judgment is definitely not applicable. 20. Similarly the decision of the Hon'ble High Court of Kerala in the case of Commissioner of Agricultural Income Tax Vs. Amalgamated Tea Estates Co. Ltd. [1970 ITR (Vol.77) pg.455 (Ker)] is also not applicable since in that case it was held that the principle that subsequent events can be taken into consideration by a Court in granting relief to parties can be applied by Tribunals also. The question here is not merely the question of taking note of subsequent event but the question to be examined is whether the valuation of goods by the appellants at the time of removal was as per law or not. The subsequent event like availability of credit of duty cannot be used to extend the benefit which is contrary to the law. 21. The decision of the Tribunal in the case of Gopal Zarda Udyog Ltd. Vs. CCE [2001 (128) ELT 409 (Tri. - Del.)] would also be of no help to the appellants since in that case the show cause n....
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....t case also demand was set aside on the ground of limitation. In the case of Mafatlal Industries Ltd. reported in 2009 (241) ELT 153 (Tri. - Ahmd.) also, even though period covered by the show cause notice had not been indicated, the facts discussed shows that penalty equal to duty had been imposed thereby revealing that extended period had been invoked. In the case of Gujarat Glass Ltd. reported in 2009 (242) ELT 254 (Tri. - Ahmd.) show cause notice was issued on 08.10.02 whereas the appellants had paid the duty on moulds on 23.03.00. Therefore this case was also one of application of extended period. The case of Nizam Sugar Factory reported in 2006 ( 197) ELT 465 (S.C.) cited by the learned advocate also relates to issue of show cause notice on the same issue subsequently. The other cases cited by the counsel are in support of the contention that extended period could not have been invoked and since I have agreed with this view, these cases are not discussed. As regards the decision of the Hon'ble Supreme Court in the case of Coca- Cola India Pvt. Ltd., the Hon'ble Supreme Court clearly observed that they were not considering the law as such thereby meaning that the decis....
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....e clear that no penalty would be leviable on any of the appellants in view of the fact that extended period has been held to be inapplicable. The sister unit would also be eligible for the credit of duty paid, if appellants pay duty. As regards interest liability, the original adjudicating authority shall examine the issue in accordance with law. Needless to say the appellants shall be given an opportunity to present their case if they desire to do so before the adjudication proceedings are completed. DIFFERENCE OF OPINION Whether the demand for the normal period of limitation without invoking extended period has to be upheld as observed by Member (Technical) or whether the demand for the entire period has to be set aside as held by learned Member (Judicial). (Pronounced in Court on 24.8.10) Opinion of 3rd Member on Difference of Opinion between the Bench in the case of MIDCO Ltd. & Ors Vs. CCE Ahmedabad Appeal No.E/1500 to 1503/2006 Date of Hearing: 20,03.2013 PER : Mr .M.V. Ravindran 1. This Difference of Opinion is placed before me as per orders of Hon'ble President for resolving difference of opinion arose between the Bench while deciding the appeal Nos.E/1500 to ....
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....ds to be moulded in such a way that the appellant is not put to any hardship. It is his submission that the judgment of the Tribunal it the case of Piom Industries - 1995 (77) ELT 424 (Tri) will apply in this case. 5. Ld. Additional Commissioner (A.R.), on the other hand, would rely upon the decision in the case of I M Power Ltd - Final Order No.A/1654/WZB/AHD/2011, dt. 18.12.2008, and submits that in the said decision, the Bench has held that the demand of the duty liability within the limitation can be raised and confirmed against the assessee, even if the clearances are made to the sister concern. 6. I have considered the submissions made at length by both sides and perused the records. 7. The entire issue, in this case; boils down to the demand of duty on the appellant only within the period of limitation, as both the Members have held that extended period of limitation cannot be invoked against the appellant, as the goods cleared from Vatva unit are consumed by the appellants own unit in Mumbai. 8. I find that there is no dispute that there is a demand of differential duty on the appellant due to valuation issue. In the case in hand i.e. difference of opinion, the question....