TMI Blog2009 (11) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... , respectively. The appellant during the period from 17-6-2000 to 30-6-2000 and 1-7-2000 to 31-3-2000 transferred certain quantity of the parts of latch locking system from Plant I to Plant II on payment of duty on the cost of production, while according to Department during 17-6-2000 - 30-6-2000 period, duty should have been paid on the cost of production plus profit margin and during 1-7-2000 31-3-2003 period, duty should have been paid on 115% of the cost of production. It is on this basis that a show cause notice dated 9-6-03 was issued for demand of differential duty amounting to Rs. 17067/- alongwith interest, and imposition of penalty under Section 11AC. The show cause notice was issued invoking extended period under proviso to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Rules, 1975, duty was required to be paid on cost of production plus profit margin, which the Appellant would have normally earned, and during period, w.e.f. 1-7-2000 duty on such goods cleared for captive consumption, in terms of the provisions of Rule 8 of the Central Excise Valuation Rules, 2000 was required to be paid on 115% of the cost of production, and thus, as such there was short payment of duty as the same had been paid only on the cost of production. However, on going through the records we find that only normal limitation period, was available to the Department for recovery of short paid duty and there was no basis for invoking extended period under proviso to Section 11A(1) and penal provision under Section 11AC in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, omission by one party to do what he might have done will not amount to suppression and that for invoking extended period, some thing positive other than mere inaction or failure on the part of the manufacturer - conscious or deliberate withholding of information when the manufacturer knew otherwise, is necessary. 3.1 In this case, none of the criteria for invoking extended period are satisfied. The criteria for invoking extended period under proviso to Section 11A and for imposition of penalty under Section 11AC are identical. Hence neither extended period for recovery of duty is invokable nor penalty under Section 11AC is imposable. 4. In view of above discussion, the duty demand is upheld only for the normal limitation period a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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