TMI Blog2023 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... AJAY SHARMA, MEMBER (JUDICIAL) Shri Rajesh Ostwal, Advocate for the appellant Shri Amrendra Kumar Jha, Deputy Commissioner (AR) for the respondent ORDER PER : C J MATHEW This appeal arises from order [order-in-appeal no. P-I/MMD/184/2012 dated 27th September 2012] of Commissioner of Central Excise (Appeals), Pune I which upheld the confirmation of demand of ₹43,48,897/-, under section 11A of Central Excise Act, 1944, and imposition of penalty of like amount under section 11AC of Central Excise Act, 1944 by the original authority in relation to clearance of goods from their unit at Pimpri between April 2007 and March 2009 and April 2010 and March 2010 to their own factories at Urse and Goa. 2. The goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-appeal no. P-I/MMD/148/2012 dated 31st July 2012] of Commissioner of Central Excise (Appeals), Pune-I. It was pointed out that the said order of the Tribunal, pertaining to the period from 2005-06 and 2006-07 had held that 4.3 Undisputedly Appellants submitted the CAS-4 certificates along with their ER-1 returns. The CAS-4 certificate mentions that valuation was done on the basis of previous year's figures and adjustment on account of inflation was done. They had adopted the above method of valuation since July 2000 when Valuation Rules, 2000 were introduced. As per chapter 6.8 of ICWAI guidelines, the cost of production can be determined on the basis of previous quarterly result also. The Appellants have appropriately taken co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under subrule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty was not accompanied with intention to evade payment of duty. Therefore, when the Appellants have paid duty in excess of what was payable as per the department, the finding of suppression cannot survive against the Appellants. In our view appellants have not violated any provisions of the Central Excise Act or the rules made thereunder. Thus even if there was any short payment of duty the same was on the basis of the CAS-4 certificate issue by the independent Cost Accountant, was due to bonafide belief of the Appellants regarding determination of assessable value, cannot be on account of suppression, fraud misstatement or contravention of the rule with the intention to evade payment of duty leading to invocation of extended period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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