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2010 (6) TMI 544 - AT - Central ExciseDemand of duty - Adjustment of duty - Before the Commissioner, the appellants had submitted their total duty liability for non payment of certain clearances - the Commissioner accepted the working furnished by the appellants but he refused to adjust the excess duty already paid for the reason that the excess payment pertained to clearances made under proper invoices - The assessee was not raising the matter of reassessment of the entire clearances following the cost construction method approved by the Apex Court in Ujagar Prints case for the first time before the Commissioner as found in the impugned order - Therefore, the basis for denying reassessment of duty paid clearances made during the material period and denying adjustment of duty from the excess payment adopted in the impugned order was actually not available to the adjudicating authority - Duty liability is vacated, penalty under Section 11AC is liable to be set aside. Demand - No demand can be sustained unless the same is based on a proposal in the Show Cause Notice and the assessee has been afforded adequate opportunity to present his case in defence - The Show Cause Notice is the foundation in the matter of levy and recovery of duty, penalty and interest as held by the Apex Court in the case of CCE v. Ballarpur Industries Ltd. [2007 -TMI - 1670 - SUPREME COURT OF INDIA] cited by the appellants. - Decided in favor of assessee.
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