TMI Blog2000 (11) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... use the spares in the repairs of the final products. The final products are earth-moving equipments such as, Dumpers/Dozers/ Excavators etc. The appellants supply substantial quantities to M/s. Bharat Earth Movers Ltd. (BEML), a Central Government Undertaking for use in the manufacture of earth-moving equipments and also for sale of such components to their customers. The prices are fixed on the basis of negotiated contracts. These spares are used for maintenance of earth-moving equipments. 2. Vide the impugned order, Commissioner has confirmed demand of duty of Rs. 3,34,198.00 against the appellant and personal penalty of equivalent amount has been imposed upon them on findings of under-valuation of goods manufactured by them for M/s. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the orders are collected by the appellants are exactly the same. There is no difference in such prices. There is no nexus with the prices at which the appellants sell their goods to M/s. BEML and the prices at which the goods are sold by M/s. BEML to their customers. The prices at which the materials are sold by M/s. BEML are fixed by them and the appellants have got nothing to do with the same. They sell their goods at negotiated contract prices to M/s. BEML. These contract prices and the prices at which M/s. BEML sell the goods to their customers are entirely different. M/s. BEML in such cases sell the goods as resellers/traders. Manufacturer s price has got nothing to do with the trader s price. The entire allegations are based on wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the financial years 1993-94 and 1994-95 was beyond the period of six months from the date of payment of duty. There is no allegation in the show cause notice justifying invocation of longer period of limitation. The commission received by them towards collection of the orders for and on behalf of M/s. BEML have been correctly reflected in the balance sheets of the appellants. As such there was no mala fide intention on their behalf to evade payment of duty on the commission received by them from M/s. BEML. In support he referred to Supreme Court s decisions. 7. Regarding the imposition of penalty under the provisions of section 11AC and realisation of interest under the provisions of section 11AB of the Central Excise Act, 1944. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuring orders on their behalf. The question arises that whether such an activity undertaken by the appellants on commission basis will effect the assessable value of the goods manufactured by them. We have seen the MOU. The appellants are not supplying the goods on behalf of M/s. BEML to their customers in 100% cases. It is only where they procured the orders for M/s. BEML, they get the commission. The Memorandum of Understanding is applicable only in respect of sale of spares and is not acceptable for customer orders to be executed by M/s. BEML against initial spares, rehabilitation spares, over-hauling items and export requirements. A reading of the Memorandum of Understanding makes the picture clear that said MOU is only in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no justification and warrant in confirming the demand of duty against the appellant by adding the commission received by them from M/s. BEML towards the assessable value of the goods. 10. We also find that the show cause notice having been raised on 5-8-1993 for the period 1993-94 and 1994-95 is barred by normal period of limitation of six months. The adjudicating authority has invoked the longer period of limitation on the ground that fact of flowing of additional amount of commission to the noticee was never reflected in the assessment memorandum. On the other hand the appellants have contended that they were under a bona fide impression that said amount earned by them as their trading activity is not required to be disclosed to the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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