TMI Blog2012 (12) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... buyers. There is no evidence to show that the appellants were under the reasonable belief that they were not required to disclose the fact of clearance of waste and scrap to the other unit at lower price - extended period of limitation is available to the Revenue - in favour of Revenue. - E/1294/04 - A/612/12/EB/C-II - Dated:- 3-5-2012 - Per: S S Kang Heard both sides. The following difference of opinion is referred to the Third Member:- 1. Whether in the facts and circumstances of the case, there is a revenue neutral situation and, therefore, extended period is not invokable, consequently demands are not sustainable as held by Member (Judicial) Or 2. Whether in the facts and circumstances of the case, there is a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants filed appeal before the Tribunal. The learned Member (Judicial) is of the opinion that the demand is not sustainable as the extended period of limitation is not invocable on the ground that whole excise is revenue neutral as the duty confirmed is available as credit to the other unit of the appellants. In these circumstances, the learned Member (Judicial) held that the allegation of suppression is not sustainable without going into the merits of the case. 3. The learned Member (Technical) held against the appellants on merits as well as time bar. 4. The contention of the appellants is that as the duty is demanded from one unit and the second unit is entitled to take credit of the duty paid, therefore there is no intention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11A may be available to the Revenue despite availability of modvat credit to an assessee. The availability of modvat credit to an assessee by itself is not conclusive or decisive consideration. It any be one of the relevant consideration. How much weight is to be attached thereot would depend upon the facts of each case. 7. The admitted facts of the present case are that one unit is clearing waste and scrap generated during manufacture of final products to the independent buyers at a higher price and to the other unit at a lower price. The fact of clearing waste and scrap to the other unit at a lower price was not disclosed to the Revenue. In these circumstances, it cannot be said that the appellants were not aware of the fact that the du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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