9911796707
TMI Blog2013 (1) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... ces' for paying excise duty and another set of invoices called challan-cum-invoices for other commercial purposes. On verifications of these invoices and also their RG-1 register it appeared to Revenue that the respondents had not accounted the full production of goods manufactured by them in their RG-1 register and had not paid duty on all goods manufactured during the period 1993-94 to 1997-98. During investigation Revenue also found that the respondents were manufacturing both exempted products and dutiable products and they had taken Cenvat credit of inputs used in the manufacture of exempted products also but have not reversed appropriate amount as per Rule 57CC of the Central Excise Rules, 1944. 3. A show cause notice issued bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponding excise invoices and were also clearing physician samples under challan-cum-invoices without corresponding central excise invoices and not paying excise duty. Since Excise duty has to be paid on such clearances of goods whether or not the respondents have billed for and realized prices of such goods, the reasoning given by the Commissioner (Appeals) for coming to the conclusion that there was no clandestine removals is faulty and not legally maintainable. Revenue points out that the proceeding before lower authorities have brought out clearance of goods without payment of excise duty. He argues that when goods are cleared on parallel invoices without payment of duty, there is a case of clandestine removal as decided by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (202) E.L.T. 182 (Tri.-LB). This decision is followed in the latest decision of Mumbai Bench of the Tribunal in Allianz Bio Sciences Pvt. Ltd. and Other v. CCE - 2012-TIOL-570-CESTAT-MAD. = 2012 (283) E.L.T. 284 (Tri.-Chennai). So Revenue argues that goods have to be valued on the basis of value of identical goods cleared by the respondent on payment of excise duty and the ruling of the Commissioner (Appeals) is erroneous. 9. Ld. Counsel for the respondents submits that the respondent is a small scale manufacturer and they were not well versed in excise law and they had no intention to evade payment of excise duty. Since they did not receive any payment on physicians samples for goods given as replacement they thought that they did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cians' samples there was no such submission before lower authorities. The only issue agitated was the valuation to be adopted for paying duty on physicians' samples. The order of the Commissioner (Appeals) order may is not be specific that he did not give relief of duty payable on physicians' samples. Since he had decided on the method of valuation to be followed it is clear that the Commissioner (Appeals) did not give relief on that count. The respondent has not filed any appeal in the matter and the submissions now regarding bona fide belief is not maintainable at all. 13. The Counsel for respondent also relies on the following decisions and argues that unless there is a positive act of suppression on the part of the assessee, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a clarification issued by C.B.E. & C. In the case of Chemphar Drugs there was an approved classification list and it was a during a time when the officers were regularly visiting the assessees. The nature of excise levy and collection itself has changed to self assessment and voluntary compliance and hence these decisions are not applicable to the facts of the case and the decision of the Apex Court in the case of Kalvert Foods (supra) is more appropriately applicable. Further in this case, this pleading was not allowed by the Commissioner (Appeals) for physicians samples and the respondent has not come in appeal. So there is no question of giving any relief in the matter of liability of duty on physicians samples. 16. Now we come to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rances after the expiry of credit. In this case the liability is for the period before the lapsing of credit though determined after the date of lapsing. In such situation it is only proper that a set off on account of such lapsed credit is given because of such liability was determined correctly during the relevant time the credit would have been available for discharging such liability. So in this matter we reject the prayer of Revenue. 20. We also give the option to pay duty short paid duty along with interest and penalty of 25% of duty short paid as penalty within 30 days of receipt of this order following the decision of the Gujarat High Court in the case of CCE v. Harish Silk Mills Pvt. Ltd. - 2010 (255) E.L.T. 323 (Guj.)] The r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
