2019 (3) TMI 851

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....2359/2018 28.01.2016 13.02.2016 27.04.2018 2012-13, 2013-14 & 2014-15 Rs.45,70,893equalamount of penalty 2. The facts of both the appeals are that the appellants are engaged in manufacture of HTS wires. The Department noticed that the appellants have been clearing said wires to their sister concern / group companies, which are further using the same in the manufacture of free stressed concrete sleepers. The details were repeatedly been asked from the appellant about the cost of production (CAS-4 certificate) for the period w.e.f 2012-13 to 2013-14 initially and vide subsequent letters, for the period 2014-15. After receiving the said details, it was observed by the Department that appellant has short paid the Central Excise duty amou....

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....site documents were not produced before the adjudicating authority. It is further impressed upon that the present are not the cases of suppression of facts on part of the appellants, as appellants have duly cooperated with Department by providing the information as and when it was asked. Since, it is an apparent fact on record that the appellants have been paying duty even at higher rates, the intention to evade the payment thereof cannot be attributed to the appellant. In view thereof neither the Department was entitled to invoke the extended period of limitation nor the penalty could have been imposed upon the appellants. Finally, impressing upon the cases to be that of Revenue neutrality, the orders under challenge are prayed to be set a....

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....rsuance thereto, the appellant is liable to pay the Central Excise duty at the rate of 110 % of the cost of production of its final product. It is observed during the arguments that the appellant has not disputed the said liability. It is only that the duty has, at number of times, is paid at a higher value that the same is requested to have been considered by the adjudicating authorities. Several documents as that of CAS-4 certificate in addition to those which were submitted to the original adjudicating authorities are relied upon. The perusal thereof shows that there has been excess payment of duty in the year 2014-15. Though the case of the Department is that the said excess payments cannot be adjusted, but due respect to the decision o....

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....and arose based on annual costing. Such cost price in terms of Rule 8 will apply to all clearances made during the relevant year. Admittedly, duty already discharged has to be considered for arriving at overall short payment. Selectively applying the said cost price only for months when the clearances were below such cost price is not legally sustainable." 7. We follow the same and hold that the appellant is entitled for the requisite adjustments of the higher payments made by him. However, since the documents highlighting the same were not before the original adjudicating authority, we deem it to be a fit case to be remanded back for the re-quantification. Original Adjudicating Authority is required to look into the documents i.e. requis....