TMI Blog2010 (1) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal before the Hon'ble Supreme Court against the said order in Civil Appeal No. 3525 of 2009. By a judgment and order dated 12-5-2009 [2009 (238) E.L.T. 3 (S.C.)], the Hon'ble Supreme Court set aside the Final Order and Stay Order dated 5-9-2006 passed by this Tribunal, and remanded the matter to this Tribunal for fresh consideration in accordance with law and in light of the judgment of the Hon'ble Supreme Court. Hence these de novo proceedings. 3. The facts in brief, is that the instant appeal has been filed by the appellant aggrieved by the order of the Commissioner dated 25-1-2006 vide which duty demand was confirmed along with interest and imposed penalty on the appellant. The appellant herein, inter alia, manufactures Pig Iron and Molten metal (herein referred to as 'the said goods') in its factory situated at Rachagunneri (V), Srikalahasti (M), District Chitpur, Andhra Pradesh. The appellant sold the said goods to its group company situated in adjacent premises viz. M/s. Lanco Kalahasti Castings Ltd. ('LKCL' in short) during the period July, 2000 to 31-3-2004. The said LKCL and the appellant were amalgamated w.e.f. 8-4-2004. The appellants sold the said goods on payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgings Steels Ltd., 2007 (212) E.L.T. A151 (S.C.) (ii) Sundram Fasteners Ltd. v. Commissioner of Customs Central Excise, 2009 (237) E.L.T. 55 (Tri.) (iii) Atul Ltd. v. Commissioner of Central Excise, 2009 (237) E.L.T. 287 (Tri.) (iv) Mafatlal Industries Ltd. v. Commissioner of Central Excise, 2009 (241) E.L.T. 153 (Tri.) (v) Commissioner of C.Ex. v. Crystal Quinone (P) Ltd., 2009 (233) E.L.T. 499 (Tri.) (vi) Kores (India) Ltd. v. Commissioner of C.Ex., 2004 (178) E.L.T. 901 (Tri.) In this respect reliance is also placed upon the following decisions of the Supreme Court, the principles laid down wherein, it is submitted hopefully apply to the instant case also : (i) Commissioner of Central Excise v. Coca Cola India Pvt. Ltd., 2007 (213) E.L.T. 490 (S.C.) (ii) Commissioner of Customs Central Excise v. Textile Corporation Marathwada Ltd., 2008 (231) E.L.T. 195 (S.C.) (iii) Commissioner of Central Excise Customs v. Narmada Chematur Pharmaceuticals Ltd., 2005 (179) E.L.T. 276 (S.C.) (b) It is submitted that in such a case as aforesaid, it is also settled law that there cannot be any motivation on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 602 (Tri.) - This decision was affirmed by the Supreme Court - Collector v. TISCO, 2000 (117) E.L.T. A24 (S.C.) (f) It is submitted that from the aforesaid it is clear and evident there has been no contravention by the appellant of any provision of the Central Excise Act, 1944 or the rules framed thereunder. The allegation and consequent purported finding of suppression of facts by the appellant with intent to evade payment of duty is erroneous and without any merit or substance whatsoever. As such, the imposition of penalty upon the appellant by the said order is erroneous, untenable and bad. (g) Further, as held by the Supreme Court the conditions for applicability of the Proviso to Section 11A(1) of the Act and Section 11AC thereof are the same. Hence, since there can be no invocation of the Proviso to Section 11A(1) of the Act in the instant case, the condition precedent for imposition of penalty under Section 11AC of the Act is also not satisfied. The imposition of penalty under Section 11AC of the Act upon the appellant is, for this reason also, contrary to law, untenable and unsustainable. 5.1 Ld. SDR on the other hand would submit that the appellant today ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no reason for the appellant to suppress the value of the goods as there won't be any gain to the appellant as the purchaser of the appellant i.e. LKCL was always availing benefit of modvat credit. 7. We have considered the submissions made at length by both sides and perused the records. 8. We find when the matter was heard by the Hon'ble Supreme Court on an appeal filed by the Revenue, the appellants herein were represented by Senior Advocate, who made submissions before the Hon'ble Supreme Court, which is recorded by the Apex Court in para-10, which we may reproduce :- "10. Mr. Ashok Desai, learned Senior Advocate appearing for the assessee in the appeal arising from SLP(C ) No. 4078/2008 submitted that the view taken by the Revenue that the assessee and LKCL, with respect to each other, were 'related person' was quite unsound. Neverthless, the assessee paid the entire demand of Rs. 1,26,09,437.00 first, in order to avoid litigation and secondly because the payment did not result in any actual monetary outflow for the assessee; whatever payment was made by the assessee, LKCL took CENVAT credit for it and reimbursed the full amount of duty to the assessee. He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gorically set aside our order and remanded the matter back for fresh consideration. This would mean that there is a clear direction to hear the appeal in its entirety, as per the appeal filed by the appellant herein. We are also fortified in above views, by judgment of the Hon'ble Supreme Court in the case of Orient Papers Inds. Ltd. v. Tahsildar-Cum-Irrigation Officer (supra) wherein, their lordships has settled the law, which we may respectfully reproduce :- "9. Though the various points on which the order made by the Irrigation Officer were challenged in the appeal on the basis of non-consideration of the question whether the point at which the water was lifted by the appellant was within the reservoir, entire order made by the Irrigation Officer was set aside and there was an open remand. When the scope of enquiry after remand was not restricted by the appellant authority, it was certainly permissible by the Irrigation Officer to examine all questions arising thereto. Therefore, we find absolutely no merit in the first contention urged on behalf of the appellant and it is accordingly rejected." 10. In view of the law so settled and in view of the direction given by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.C.Ex., Delhi-III, Gurgaon v. Machino Montell (I) Ltd. - 2004 (168) E.L.T. 466 (Tri.-LB) (Copy enclosed). 4. Since the issue is settled in favour of the appellants, it is requested that the orders of the Commissioner of Customs Central Excise (Appeals), Guntur in so far as the demand of interest and penalty on the duties already paid by the appellants may be set aside or stayed unconditionally, with consequential relief in favour of the appellants. It can be seen from the above reproduced submissions that the appellant had not conceded the case. They only took the alternative plea, in order to end the litigation and once and for all settle the issue. We find that the identical submissions were made by the appellant's counsel before the Hon'ble Supreme Court. 12. It is an admitted fact that in this case the appellant had cleared the said goods on payment of Central excise duty during the period July, 2000 to 31st March, 2004. It is also an admitted fact that the appellant had discharged the Central excise duty on the transaction value on the price actually charged by them from their purchaser i.e. LKCL. We find from the show cause notice that there is no dispute during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there are no allegations that the transaction value adopted by the appellant for clearances to LKCL during the relevant period, were influenced in any manner and there are also no queries raised by the Revenue on such value till issuance of show cause notice. We are of the view that show cause notice dated 27-7-2005 which raises the demand of the duty for the period July, 2000 to 31st March, 2004 is blatantly time barred and any order which confirms the demand is liable to be set aside on the ground of limitation itself. 15. As regards the liability to penalty under Section 11AC and the interest on the demand confirmed by the adjudicating authority and paid by the appellant, we find that the directions of the Hon'ble Supreme Court in the remand proceedings are very clear, it is directed that the Tribunal has to consider each and every aspect of the provisions of Section 11AC for invoking the same for imposition of penalty. Having already held that there cannot be any intention on the part of the appellant to undervalue the clearances of the said goods during the relevant period, as appellant had adopted transaction value, for the clearances of the said goods to discharge dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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