2017 (2) TMI 1036

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....omponents and clearing them on payment of duty by using dies manufactured by it and also supplied by customer. In certain cases, they manufacture the dies and bill the same to customer but retain the same in the factory for captive consumption under notification No. 67/95-CE dt. 16.03.1995. Therefore, though they realize consideration for said dies but physically do not pay any excise duty because of said notification. However, later as and when such dies are physically supplied to customer, the duty not paid because of notification No. 67/95, is paid at that time. The case of department is that once invoice is raised to the customer, they were supposed to pay duty even if the goods were not removed from the factory. Appellants felt that th....

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....nt provisions for the same contravention. 5. The Ld. AR appearing for Revenue reiterated the findings in the order of the Ld. Commissioner (Appeals). 6. Heard both the parties and perused the records. 7. We find that in this case the appellants have recovered the cost of tools and dies from M/s Ashok Leyland Ltd and M/s Volvo India Pvt Ltd by raising debit notes. They also recovered sales tax by calculating central excise duty and treating the same as cum-duty price. However, they did not discharge central excise duty liability. Recovery of consideration in the form of debit notes and recovery of sales tax shows that effective sale has taken place. However, the goods have been retained by the appellants after their manufacture even....

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....s rightly taken the view that the exemption under notification 67/95 (supra) was not applicable to the tools and dies manufactured by the appellants. 9. As for the limitation, in the case of CCE & ST vs. Triveni Engineering & Industries Ltd. (supra), the Hon'ble High Court has taken a view that proviso to Section 11A was not applicable because the show cause notice does not indicate that there was deliberate suppression of fact, fraud, mis-statement etc. committed by the assessee and mere act of Commission by the assessee without there being any intention to be evade tax cannot be a ground to invoke proviso to Section 11A ibid. In the instant case, however, there is positive act on the part of the assessee in form of raising debit notes,....