TMI Blog2012 (1) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ase which would get covered by provisions of Section 11A(2B) of the Central Excise Act, therefore we set aside the penalty imposed - Decided partly in favour of assessee. - E/971/2009 and E/406/2006 - Final Order Nos. A/23-24/2012-EX(BR)(PB) - Dated:- 12-1-2012 - Shri Ashok Jindal and Mathew John, JJ. Shri Sudhir Malhotra, Advocate, for the Appellant. Shri N. Pathak, DR, for the Respondent. ORDER There are two appeals being decided in this proceeding. These appeals are based on the same facts and hence being decided together. Appeal No. 971/2009 is in the matter of demand of duty short paid during April 2003 to July 2003. Appeal No. 406/2006 is in respect of refund, claimed by the appellants, of duty amount deposited on 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - for the months of 4/2003 to 7/2003 and interest of Rs. 37,651/- on 21-8-2003, after they came to know about the mistake. However, Revenue was of the view that the amount of interest payable was not calculated properly and if such interest was calculated as prescribed under Rule 8(3) as it existed at the relevant time the interest liability was of Rs. 2,47,000/- and not Rs. 37,651/- as calculated by the Appellants. For this reason, a Show Cause Notice dated 13-9-2007 was issued proposing to confirm the duty amount of Rs. 13,78,489/- not paid by them initially and paid subsequently with appropriate interest. Notice also proposed imposition of penalty under Section 11AC of the Act. A Show Cause Notice was adjudicated confirming the duty dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant under Section 11AC is not maintainable. 4. We have considered arguments on both sides. 5. The main argument of the Appellants is that for calculating aggregate value of clearances as per clause 2(vii) of Notification 8/2003-C.E. the value of exempted product need not be taken into account. They argue that value to be taken into account is value as per provisions of Section 4 of Central Excise Act and that Section 4 will apply only when excise duty is to be charged on any goods based on value. Since excise duty is not chargeable on exempted goods, value cannot be determined under Section 4 and hence it need not be taken into account. They rely on the decision of the Supreme Court in CCE v. Wander Ltd. reported in 2003 (157) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Wander Ltd. (supra) was not that the method prescribed in Section 4 cannot be adopted for any other purpose. In that case the main issue was classification of the product. Once classification was decided and as per that classification the product was exempt there was no need to examine the issue of valuation. This is what is stated in para 4 of the judgment. This observation cannot be adopted to interpret the scope of clause 2(vii) of Notification 8/2003-C.E. 8. However, considering the sequence of events, the clarification dated 6-8-2003 issued by C.B.E. C. and prompt payment of duty and interest on 21-8-2003, we are of the view that this is a case where there was no intention on the part of the Appellants to evad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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