TMI Blog2013 (8) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... eturns, it is clear that the returns filed by an assessee are required to be subjected to detailed scrutiny in course of which the concerned officer can call for the documents from the assessee wherever necessary for scrutiny. Therefore in this case, if the concerned Range officer/Assistant/Deputy Commissioner or concerned Additional Commissioner had checked the returns, the short payment would have been immediately detected as, as observed by the Commissioner in para 4.5 of the impugned order, even the registration certificate of the appellant mentioned them as a unit of Accurate Transformers Ltd., and in all the documents of the appellant, the transfer of goods from the appellant to Accurate Transformer Ltd. had been reflected as inter unit transfer. Neither there is any allegation nor evidence to prove that there was some collusion between the appellant and the Jurisdictional Central Excise officers - The assessee cannot be penalized by invoking extended period under proviso to Section 11 A (1) for demand of duty and penal provisions of Section 11AC for indolence on the part of the jurisdictional Central Excise officers – Decided in favor of Assessee. Revenue Neutral Exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for (a) recovery of Central Excise duty amounting to Rs. 1,61,05,450/- alongwith interest in respect of clearances of MS tanks and radiators of transformers to their transformer unit in Ghaziabad during the period from 2002-2003 to 2005-2006, alongwith interest on this duty at the applicable rate as per the provisions of Section 11AB of Central Excise Act and (b) imposition of penalty on the appellant under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944. 1.2 The above show cause notice was issued by invoking extended period under proviso to Section 11A (1) of Central Excise Act, 1944 alleging that the appellant have suppressed the relevant facts from the department with intend to evade the payment of duty. 1.3 The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 04/5/08 by which the above-mentioned duty demand of Rs. 1,61,05,450/- was confirmed against the appellant alongwith interest and beside this penalty of equal amount was imposed on them under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of Central Excise Act. In this order, the Commissioner held that since the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eutral situation comes about in relation to the credit available to the assessee himself and not by the way of availability of credit to the buyer of the assessee s manufactured goods, proviso to Section 11A (1) of Central Excise Act would not be invokable, that Division Bench of the Tribunal in the case of Aarvee Denims Exports Ltd. vs. CCE, Ahmedabad -II reported in 2009 (247) E.L.T. 645 (Tri. -Ahmd.) has held that when the appellant had cleared the goods on stock transfer basis to their another unit for its captive consumption and Cenvat credit of the duty paid by the appellant was available to their unit II, there would not be any intention to evade the duty on the part of the appellant in respect of clearances made by them to their Unit II and extended period would not be invokable, that same view has been taken by the Tribunal in the case of CCE, Vadodara vs. SICGIL Industrial Gases Ltd. reported in 2009 (245) E.L.T. 693 (Tri. - Ahmd.), that in view of this, the entire duty demand for the period from 2002-2003 to 2005-2006 raised vide show cause notice dated 16/8/07 is time barred, that since there was no intention to evade the payment of duty, penal provision of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated person for its captive use and, hence, in accordance with the provisions of Rule 9 readwith Rule 8 of the Central Excise Valuation Rules, 2000, the duty was payable on 110%/115% of the cost of production, while the duty had been paid on much lower value. Accordingly, we hold that the duty was payable on 110% / 115% on the cost of production. 7. The second question is of the limitation. The period of dispute is from 2002-2003 to 2005-2006. The show cause notice had been issued on 16/08/07 i.e. beyond the normal limitation period of one year from the relevant date. The show cause notice, therefore, would be valid only if extended period under proviso to Section 11A (1) is invokable for which it has to be proved that the short levy had taken place due to fraud, wilful misstatement, suppression of facts or contravention of any provisions of the Central Excise Act, 1944 or of the Rules made thereunder with intent to evade the payment of duty. Ongoing through the records, we find that all the sample invoices placed on record clearly mention that the appellant unit is owned by M/s Accurate Transformers Ltd. and that their clearances to M/s Accurate Transformers Ltd., Ghaziabad are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant and the Jurisdictional Central Excise officers. The short payment was detected when during visit by the audit team, the records maintained by the appellant and made available by them to the audit officers were examined by them, - something which should have been done by the Jurisdictional Range Officers and Divisional Assistant Commissioner/Deputy Commissioner much earlier. The assessee cannot be penalized by invoking extended period under proviso to Section 11 A (1) for demand of duty and penal provisions of Section 11AC for indolence on the part of the jurisdictional Central Excise officers. Moreover Apex Court in a series of judgments CCE vs. Champher Drugs Liniments reported in 1989 (40) E.L.T. 276 (S.C.) ; Padmini Products vs. Collector reported in 1989 (43) E.L.T. 195 (S.C.) ; Pushpam Pharmaceuticals vs. CCE reported in 1995 (78) E.L.T. 401 (S.C.) ; Anand Nishikawa Co. Ltd. vs. CCE, Meerut reported in 2005 (188) E.L.T. 149 (S.C.) ; Continental Foundation Jt. Venture vs. CCE, Chandigarh reported in 2007 (217) E.L.T. 177 (S.C.) has held that something positive other than mere inaction or non-payment of duty is required for invoking extended period und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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