TaxTMI 
TaxTMI 
2018 (4) TMI 718
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....re the provisional assessment was pending for the relevant period, whether issue of show cause notice for recovery of duty allegedly short paid on the ground of undervaluation, under the provisions of the law, Section 11A of Central Excise Act read with Rule 9B of C.E.R., 1944, was valid? And whether the Show Cause Notice issued, pending the finalization of provisional assessment is valid? 2. The brief facts are that the appellants M/s Domebell Electronics India Private Ltd. (DEIPL) and M/s Venugopal Engineering Ltd., are manufacturers of colour TV under the brand name Videocon. The brand owner of Videocon is M/s Videocon India Ltd. Other company of Appellants is M/s Videocon International Ltd. (VIL) which also manufactures the Colou....
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....sed an order dated 21.12.1994 under Rule 9B of the Central Excise Rules, 1994 directing the assessments to be done provisionally with effect from 1.3.1994 being investigation into all aspects relating to the valuation of the goods under Section 4 of the Central Excise Act, 1994. 4. SCN dated 05/08/1996 was issued to the Appellants, alleging:- * Appellant (DEIPL), VIL and EIPL have been indulged in inter-unit marketing in as much as M/s DEIPL/EIPL sells the goods to VIL at a substantially lower price and vice versa, who ultimately sell it off to the dealers at a much higher price. The scheme, in view of the department had been devised to evade the due Government revenue. * The dealer price, which has remained same for DEIPL, VIL and EIP....
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....n on account of freight/ transportation, but in support of their contention no proof was submitted by them. * Discounts were not given on the body of invoices. The discount had been mostly passed under the cover of the credit notes at a much later date, thus the customers (dealers) did not know in advance or at the time of sale, the quantum of discount available to them. Thus deductions claimed are not admissible. 5. Thus the differential duties were demanded from DEIPL and EIPL invoking extended period of limitation. Further, SCN also proposed to impose penalty under Rule 173-Q of the CER, 1944 on M/s. EIPL and DEIPL. Further, SCN also proposed to impose penalty on M/s VIL u/Rule 209A of the CER, 1944 for its act of collusion with M/s D....
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....ding the matter back to the Ld. Adjudicating Authority for passing a fresh order of assessment by adopting the approved assessable values of identical sets manufactured by M/s VIL. Further, it was held that in case such value is not available for a particular variety of television, the Commissioner shall pass a fresh order of assessment for that variety, after allowing deductions in respect of freight, sales tax and trade discount, on an appropriate basis. 10. Impugned O-I-O dated 28/02/2007 was passed by the Ld. Commissioner whereby, he confirmed the demand of Rs. 25,72,882/- against M/s DEIPL and imposed penalty of Rs. 10,00,000/- Further, he confirmed demand of Rs. 52,40,982/- against M/s EIPL and imposed penalty of Rs. 70,00,000/- on i....
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....the basis of the final assessment within 10 days' time from the receipt of the order. No question of giving any notice under Section 11A arises in such a case. It is only when even after final assessment and payment of duties, it is found that there has been a short levy or non-levy of duty, Excise Officer is empowered to take proceedings under Section 11A within the period of limitation, after issuing a show cause notice. In such a case, limitation period will run from the date of final assessment. The scope of Section 11A and Rule 173-I, are quite different...." 12. Heard the Learned A.R. for Revenue who has relied on the impugned order. 13. Having considered the facts and circumstances, we find that the show cause notice issued prior t....