TMI Blog2015 (4) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ce prevailing at that depot at the time of clearance of the goods from factory shall be the correct transaction value for charging the excise duty. - Accordingly, in terms of Rule 7, in case goods not sold from the factory but transferred to the depot the price prevailing at depot at the time of removal of the goods from the factory shall apply as transaction value. - Decided against the assessee. Extended period of limitation - Held that:- the demand for the period prior to audit observation raised on January 2001 can be raised up to 5 years as there was clear suppression during that period. Hence, the demand of duty for the period up to January 2001 is correct and legal. In the show cause notice dated 19.7.2005, the demand was raised for the period from 1.7.2000 to 30.9.2004. In this regard, we observe that when the fact of the issue came to the notice of the Department in January, 2001, subsequent to that it cannot be said that there was suppression on the part of the appellant - though demand of duty for period involved in these appeals (except for the period February, 2001 to June 2004) is sustainable on merit, however demand of duty pertaining to the period February 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are sold from the depot but in certain circumstances some of the vehicles are transferred from one RSO to another RSO and goods sold from the later RSO. The appellant are discharging the excise duty at the time of clearance of the vehicle from the factory at the price prevailing at the RSO where the vehicles are initially cleared. However, subsequently some of the vehicles are transferred to another RSO, where the prevailing price of the vehicle is higher and vehicle is sold at that higher price. Various show cause notices came to be issued wherein the differential excise duty was proposed to be demanded on the prevailing price of the vehicle at the depot (RSO) from where the actual sale of the vehicle took place and price at which excise duty was discharged at the time of clearance of the vehicle from the manufacturing unit. In the adjudication Ld. Adjudicating authority after some adjustment, on quantification confirmed the demand holding that under Rule 7 of Central Excise Valuation Rules, 2000, price prevailing at the depot from where the goods is actually sold at the time of clearance of the goods from the factory shall apply and not price, which is prevailing at the depot w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice dated 19.7.2005 is clearly time-barred. He further submits that in all the subsequent show cause notices, by invoking proviso to section 11 A, penalty under section 11 AC of the Central Excise Act, 1944 was imposed. It is his submission that in all the show cause notices issued subsequent to first show cause notice, there is absolutely no suppression is involved. Therefore penalty under section 11 AC was wrongly imposed. 3. On the other hand, Shri. Rakesh Goyal, Ld. Addl. Commissioner (A.R.) appearing for the Revenue reiterates the findings of the impugned orders. He further submits that appellant's interpretation of Rule 7 is mis-leading and is not correct. He submits that in terms of Rule 7 the price prevailing at the place from where the good sold is to be considered as correct assessable value. In the present case though the motor vehicle were initially cleared to particular depot but subsequently transferred to another depot and actual sale has taken place from the subsequent depot, therefore price prevailing at such subsequent depot at the time of clearance of the motor vehicle from the factory should be treated as correct assessable value and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, shall be governed by the provision of above Rule 7. On careful reading of the said rule we are of the view that price prevailing at that depot from where the goods is sold shall apply. Contention of the appellant is not acceptable that at the time of initial clearance of motor vehicle to first depot, goods are intended to be sold from the first depot irrespective whether the motor vehicle first cleared to particular depot and subsequent transferred to another depot. The fact remains that the goods are sold from the subsequent depot, and not from first depot therefore in terms of Rule 7 a depot from where the goods is actually sold, the price prevailing at that depot at the time of clearance of the goods from factory shall be the correct transaction value for charging the excise duty. We are also of the view that after enactment of amended Section 4 of Central Excise Act, 1944 w.e.f. 1/7/2000 and Central Excise Valuation (determination of price of excisable goods) Rules, 2000 there is no room for concept notional value or for normal sale price. Accordingly, in terms of Rule 7, in case goods not sold from the factory but transferred to the depot the price prevailing at depot at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 2001 is correct and legal. In the show cause notice dated 19.7.2005, the demand was raised for the period from 1.7.2000 to 30.9.2004. In this regard, we observe that when the fact of the issue came to the notice of the Department in January, 2001, subsequent to that it cannot be said that there was suppression on the part of the appellant. It is admitted in the impugned order that the fact of moment of vehicles from factory to 1 st depot and from there to 2 nd depot and sale there from was revealed from audit of the appellant's record in January 2001. Therefore it cannot be said that subsequent to that period there was suppression of fact on the part of appellant. Therefore in our considered view the demand for the period February 2001 to June 2004 becomes time-barred, hence the same is dropped. As regards the submissions of the learned Counsel that penalty under Section 11 AC cannot be imposed in respect of normal period of 1 st SCN and in all subsequent show cause notices issued covering the period July, 2004 to March, 2013 as the same were issued within normal period of one year. The fact of the modus operandi of the appellant came to the notice of the Department in Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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