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2010 (12) TMI 290 - AT - Central ExciseEvasion of duty - Non maintenance of accounts - Valuation of excisable goods with reference to retail sale price - Demand - Penalty - It is the submission that the appellants completely denied the allegation of clandestine removal; submitting details of raw material procured, the input and output ratio etc. and contented that the charge on clandestine removal as set up in the show cause notice was not corroborated by any other evidence - The information of detection of clandestine removal and evasion of duty came to the knowledge of the Department through external sources - Held that: The adjudicating authority having not given any positive findings as regards the clandestine manufacturing and clearance of the goods, in itself would indicate that the said charges as alleged against the appellants were not proved. - the suppression of turnover is admitted and can be either on account of undervaluation or on account of volume - As the suppressed turnover is in value terms only, no enquiry need be made for establishing the turnover to the use of raw materials etc. The suppressed turnover, being the excess collection over and above the recorded value or income in their books, is related to the sale value which escaped assessment under the Central Excise Act. Once the suppressed turnover is admitted beyond any doubt and the assessee opts to accept the tax liability under the Income Tax Act, no meaningful purpose would have been served to cause further detailed probing under the Central Excise Act and Rules. - Order travelled beyond the scope of SCN, demand set aside. It is to be noted that the recalculation or re-quantification of an amount received in excess of the MRP declared and collected from the customers has to be done in a prescribed manner - CBEC vide circular No.334/1/2008-TRU dt. 29/2/2008 made it clear that the MRP Valuation rules are effective from 1/3/2008 - his would indicate that prior to 1/3/2008, there was no procedure to revise the MRP and demand the duty even though there being a provision under sub-section (4) of Section 4A of the Central Excise Act, 1944 - Held that: In the absence of any legal machinery during the relevant period, re-determination of RSP /MRP by the Department is without any authority of law.
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