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TMI Blog2011 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. Both the show cause notices raised the issue as to whether free supplied moulds shall be subject to amortisation for determining assessable value. 2. The appellant by letter dated 11.6.01 informed the authorities below that w.e.f. 1.2.2000 cost of moulds was amortised (reference page 25 of appeal folder) and the manner of amortisation was explained by cost sheet (reference page 27 of the appeal folder). But the show cause notice alleged that before and after amortisation, assessable value of goods remained the same. Audit made during 18.4.2002, 20th April, 2000, had also pointed out that assessable value did not comprise amortisation cost and visit by the departmental officers on 12.3.01 (by which date the assessee had followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sugar Ltd. delivered by Apex Court 2008 (9) STR 314 (S.C.) to submit that when the things were within the knowledge of the Department and the law was in debatable stage, the case of suppression of the assessable value does not arise. He therefore, prayed that no penalty may be levied for both the periods covered by different show cause notices. 5. While arguing on the merits as above, his categorical submission is that both the cases suffer from time bar because the facts were within the knowledge of the Department as early as 11.6.01 6. Ld. DR on behalf of the department submitted that in terms of show cause notice, the assessee was well exposed of the fact that before and after amortisation, assessable value remained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of that show cause notice is time barred. 9. The second show cause notice pertained to period April 2001 to August, 2002. Looking to the date chart given by Shri Rastogi and looking to the legislative intent of section 11A (2B), we are of the view that the case in so far as second show cause notice is concerned, that partially attracts the case of the appellant. But assessee has failed to discharge the duty demand of Rs.1,71,904/-. Thus, the assessee handicapped itself to get the immunity under section 11A (2B) of Central Excise Act, 1944. 10. Motive of the assessee invited attention in respect of levy of penalty while the assessee came forward to discharge its tax liability soon after the audit observations were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option in this respect is given to Assessee. In the case of K.P. Pouches (P) Ltd. vs. Union of India reported in 2008 (228) ELT 31 (Del.) Hon ble High Court of Delhi has appreciated genuine difficulties and laid down that option should be patent from adjudication order and in para 27 of the judgement held as under:- 27. To obviate any similar situation from arising in future, we are of the opinion that in its adjudication order the adjudicating authority under the Act should explicitly state the options available to the Assessee under Section 11AC of the Act. Once the choices are made known to the Assessee and it still does not take advantage of the first proviso to Section 11AC of the Act, it will be entirely at its own peril. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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