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Rashiklal & Co. Versus Commissioner of Central Excise, Chennai

2015 (9) TMI 94 - CESTAT CHENNAI

Demand of Differential duty - suppression of facts - Invocation of extended period of limitation - suppression of facts - Held that:- The Range Superintendent was very well aware of the variation between the commercial invoice and the excise invoice. Therefore, the records clearly confirms that demand is hit by limitation. The adjudicating authority as well as appellate authority in spite of the direction issued by Tribunal in the final order dt. 10.9.99 has not discussed on the issue of limitat .....

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g differential duty for the period March 1994-95 to March 1996-97. There is no suppression of facts by the appellant. By respectfully following the Supreme Court decision (supra), we hold that demand is hit by limitation. - Decided in favour of assessee. - Appeal No. E/MISC/131/2010, E/MISC/40448/2015 & E/143/2004 - Final Order No.40968/2015 - Dated:- 6-8-2015 - Hon ble Shri R. Periasami, Technical Member And Hon ble Shri P.K. Choudhary, Judicial Member,JJ. For the Appellant : Ms. Karthika Prasa .....

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el Nut Powder falling under Chapter 2107 manufactured and cleared by the appellant on payment of duty. Show cause notice dt. 6.8.98 was issued and the adjudicating authority in his OIO dt. 30.11.98 confirmed the differential duty on the higher price collected as per commercial invoice. In the first round, the adjudicating authority confirmed the demand and also imposed penalty of ₹ 1,75,728.66 under Section 11AC and also imposed penalty of ₹ 1 lakh under Rule 173-Q of the Central Exc .....

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the case to the adjudicating authority. The adjudicating authority in his de novo order dt. 31.3.2003 again confirmed the demand and imposed penalty as it was imposed in the original order dt. 30.11.98. Commissioner (Appeals) rejected their appeal. Hence the present appeal. 3. Ld. Advocate appearing for the appellant submitted a written synopsis and reiterated the same. She submits that the period involved in the present demand is 1994-97. She submits that in their additional grounds, it is plea .....

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10%, 15% & 20% whereas the department has not taken into consideration the slab rate which is applicable for value of clearances. If the slab rate was taken into consideration, the differential duty was worked out to ₹ 3,75,741/-. She submits that along with written submissions they have also filed the table worksheet vide Annexures I to VI showing differential value and differential duty as per their calculation vis-a-vis value quoted in the SCN. 3.2 On limitation, she submits that t .....

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2.48 per kg. whereas the duty was paid on ₹ 194.05 per kg. They have worked out in the worksheet and the same was submitted to the jurisdictional authorities. She further relied on letter dt. 1.1.96 and series of letters wherein the department was already aware of the deduction. The Superintendent of Central Excise, by letter dt. 15.11.95 (Ref.page 7) sought for clarification from the appellant as to how they arrived at the assessable value after allowing deductions of trade discount, turn .....

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limitation. The show cause notice was issued on 6.8.98 for the period 1994-97. She relied on the following case laws :- (1) CCE Calcutta Vs Alnoori Tobacco Products 2004 (170) ELT 135 (SC) [on additional grounds] (2) Pushpam Pharmaceuticals Co. Vs CCE Bombay 1995 (78) ELT 401 (SC) (3) Chandilya Chemicals Vs CCE Chennai 1999 (114) ELT 695 (Tribunal) (4) CCE Meerut Vs Nulon India Ltd. 2000 (120) ELT 346 (Tribunal) (5) CCE Mumbai Vs S. Narender Kumar & Co. 2011 (267) ELT 577 (S.C) (6) Orissa B .....

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ent case is only on the demand of differential duty on the variation in higher price shown in the commercial invoice when compared to excise invoice which is purely on the valuation. Therefore, they cannot take a new ground before the Tribunal. He submits that adjudicating authority at page 67 has considered the slab rate of duty. He also submitted on the limitation issue that the adjudicating authority considered letter dt. 20.11.95 relied by the appellant. He relied the following case laws :- .....

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appellants contended both on merits as well as on limitation as there is no suppression of facts. In the first round of litigation, the Tribunal in its order dt. 10.9.99 while remanding the case to Commissioner (Appeals) clearly directed the LAA to examine all the points pertaining to limitation raised by the appellant. On perusal of the impugned order as well as the remand order of the Tribunal, we find that in spite of the Tribunal s direction, no clear cut findings have been brought out eithe .....

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₹ 237.22 whereas the assessable value has been worked out as ₹ 194.06. We find from letter dt. 20.11.95 that appellant submitted a detailed reply to the jurisdictional Superintendent explaining the deductions claimed by them and how assessable value has been arrived at. On a perusal of the worksheet annexed to their letter dt. 20.11.95, it is clearly explained to indicate LESS deduction on a/c of T.O.T 2% and the amount collected from the buyer . We also find from letter dt. 23.11.9 .....

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variation between the commercial invoice and the excise invoice. Therefore, the records clearly confirms that demand is hit by limitation. The adjudicating authority as well as appellate authority in spite of the direction issued by Tribunal in the final order dt. 10.9.99 has not discussed on the issue of limitation and not made out a case of suppression of facts against appellant. In this context, we find that Hon ble Supreme Court in the case of Orissa Bridge & Construction Corpn. Ltd. Vs .....

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