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2013 (11) TMI 1415 - AT - Central ExciseMarketability of Goods – optical transmission equipment - clearance for Field Replacement/ Advance Field Replacement/ Rework and Demo - Held that:- Relying upon A.P. State Electricity Board Vs. CCE [1994 (2) TMI 56 - SUPREME COURT OF INDIA] - For goods to be marketable it is not necessary that goods in question should be generally available in the market - Marketability does not depend upon the number of purchasers - Huge machineries as also small parts of one machinery may be designed to the order of one customer and such item may not be useful to others - Still such goods will be considered as marketable. Valuation of goods – Cost construction method OR value of comparable goods – Held that:- The goods cleared without payment of duty for which duty is now demanded cannot be considered as goods cleared to other units of the appellant for further manufacture of other excisable goods - These are cases of clearances for evasion of duty - thus valuation under Rule 8 will not apply and the value of comparable goods is correctly applied. Demand of duty on removals for replenishments of short-shipments - clandestine Removal - Held that:- The question whether short shipments and subsequent replacement to make good the short shipment was genuine or not is a question of fact rather than law -The second consignments sent on the pretext of goods short shipped were clandestinely removed - Excise liability does not depend on realisation of money but on manufacture and removal - the appellant has been freely removing goods under the pretext of testing to be done, replacement of defective pieces etc. without payment of duty and proper accounting of the goods after testing etc. – thus in the case of short shipment also this is only a method adopted for clandestine removal and not cases of genuine supplies to make good short shipments. Extended period of limitation – Held that:- Following Commissioner of Central Excise, Mumbai Versus M/s. Kalvert Foods India Pvt. Ltd. & Ors. [2011 (8) TMI 24 - SUPREME COURT OF INDIA] - The argument of the first appellant that SCN was issued after one year from the date of knowledge and hence time barred is not a legally correct argument - Section 11A of Central Excise Act provides time limit from the ‘relevant date’- Decided against Assessee. Penalty on employees of the Company - The second appellant and the third appellant are only employees of the first appellant which is a company - Nothing has been brought on record to show that they have personally gained by the duty evaded – thus after imposition of adequate penalty on the first appellant there is no justification to impose penalty on the second and their appellants also – the penalties imposed on second and third appellant set aside.
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