TMI Blog2022 (4) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... med that the element of profit was not included in the assessable value, without producing any evidence in support of their allegation. The cost of production and element of profit depends on various factors prevailing in the market from time to time. Revenue has assumed and adopted cost of production ₹ 17 per Ltr for the entire period in question without showing how and which data they have relied upon to formulate such value and the charges of under valuation framed against Appellant. Certificate submitted from Chartered Accountant shows that element of profit was included in assessable value in clearance of Ethyl Alcohol to Appellant s sister unit. Certificate of Chartered Accountant could not be brushed aside, without any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of excise duty - charge of suppression or willful misstatement with intention to evade payment of duty cannot be sustained against the Appellant. Hence extended period for demand cannot be invoked. No mala fides can be attributed to Appellant for such issue of interpretation and hence extended period of time limitation is not invocable in the facts of this case. Appeal allowed - decided in favor of appellant. - Excise Appeal No.10569 of 2015 - A/10341/2022 - Dated:- 12-4-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri P P Jadeja, Consultant for the Appellant Shri G. Kirupanandan, Superintendent (AR) for the Respondent ORDER This appeal is filed by M/s Kumaka Industries Ltd agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Ankleshwar and it was availed as per Rules. Revenue s case is that Ethyl Alcohol was transferred by Appellant to its sister unit, assessable value of goods was without including margin of profit, resulting in short payment of duty. Show Cause Notice No. V(Ch.22)3-109/Dem/2000 dated 25.11.2002 covering period from November 1997 to March 2000 was issued, proposing to recover excise duty ₹ 90,02,010/- with interest and penalty. The said SCN was issued by invoking the extended period of limitation. Despite objection by the Appellant, entire duty demand of ₹ 90,02,010/- was confirmed. In the first round of litigation, this Tribunal at Ahmedabad vide its final Order No. A/10225/2014 dated 12-02-2014 remanded matter back to Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Credit and the sister unit was also in position to utilise such credit for payment of duty on final products cleared by the said sister unit of Appellant. h) Duty demand with Interest invoking extended period of time limit is also completely time barred, as the SCN demanding duty for period from November 1997 to March 2000 was issued on 25-11-2002. i) This is a pure case of interpretation of provisions of the law only. Accordingly, Penalty u/s 11AC is not justified/warranted. 4. Shri G. Kirupanandan, Learned Superintendent (Authorized Representative), appearing on behalf of the Revenue reiterates findings of adjudicating authority and has submitted that the case of Revenue is proved as Appellant has not included profit in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit. The said Certificate by CA is said to have been issued after verification of Appellant s accounting records, RT-12 Returns, Sales Invoices and audited Financial Statements for respective periods etc. However, adjudicating authority has not accepted the Appellant s contention and the certificate issued by Chartered Accountant as the same is not supported by any other acceptable evidence. We find that whether assessable value for clearance of Ethyl Alcohol was inclusive of profit or not can decide the entire issue on merits of the case. When revenue is making such an allegation, the burden is on revenue only to establish this factor with sufficient evidences. Revenue has only assumed that the element of profit was not included in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be justified, if assessee himself was entitled to avail Cenvat credit of disputed duty demanded when assessee is in a position to utilize Cenvat credit for payment of duty on clearance of their final products. 5.2 We find that the Show Cause Notice in this case has been issued, invoking extended period of limitation, which is objected by the Appellant. Decisions relied upon on Time Limitation by Appellant are like HMM Limited 1995 (76) ELT 497 (SC), Padmini Products and Chemphar Drugs Liniments- 1989 (43) ELT 195 (SC) and 1989 (40) ELT 276 (SC) and others referred to in their submissions in this case. We find that the adjudicating authority has not given sound reasons for rejecting submissions on the time limitation. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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