2018 (8) TMI 1217

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....Ltd and M/s VST Ltd. They had cleared goods on payment of duty on provisional basis for the years 2005-06 and 2006-07 because the full details required for determining the assessable value were not available at the time of clearance of goods. Thereafter, as per CAS-4 report submitted by them, their assessments were finalized and it was found during the year 2005-06, they paid an amount of Rs. 9,23,335/- in excess and for the period 2006-07, they paid an amount of Rs. 11,91,063/- in excess. The appellant herein had not claimed refund of this amount because the credit of duty has already been availed by their customers i.e., M/s ITC Ltd and M/s VST Ltd. Thereafter, the department noticed that the appellant had not included the cost of corruga....

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.... subjected to penalty which is bad in law. (c) Revenue has not challenged the orders for finalization of provisional assessments which are appealable orders and therefore the orders have attained finality and therefore the department cannot commence fresh proceedings for recovery of duty. (d) The payment is hit by limitation of time and the proviso to Sec.11A cannot be invoked in their case as they have no intention to evade duty. (e) The department is aware of the alleged short payment since 2008, since they had written to the appellant on 26.05.2008 asking them to pay the differential duty. (f) The value of CFCs and gum tapes should not be included in the assessable value because they are recycled / reused and hence, cannot be....

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.... revealed that this value was not included in the assessable value during the relevant period. Therefore, there was indeed, suppression of facts which led to short payment of duty by the appellant and hence, the proviso to Sec.11A applies in full force in this case. Consequently, the provisions related to interest and penalty also apply in this case. Learned Counsel for the appellant, countering the arguments made by the learned departmental representative submits that even if this amount is taken into account, their net tax liability will not be higher. In fact, they still would have paid duty in excess of what they were due to pay. 8. We have considered the arguments on both sides and examined the records. It is not in dispute that the....