TMI Blog2015 (10) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to evade duty. - Mahalaxmi Fabrics Mills Ltd was clearing the goods on provisional basis as the exact amount of costing could be arrived at only at the end of the financial year. As the entire facts of the valuation and clearances were within the knowledge of the Department, the First Appellate Authority has correctly held that the extended period under proviso to Section 11A cannot be invoked and also that no penalty under Section 11AC of the Central Excise Act, 1944 are imposable upon the assessee. - The concept of revenue neutrality for not confirming the demand cannot be raised for the period within the limitation. If the duty is payable by the Appellant is paid by the Appelalnt, the credit of the same can be taken by M/s Mahalaxm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier period 2001-02 and 2002-03 was issued on 02.01.2006 by invoking extended period. It was his case that extended period was invoked by the Revenue only in the second Show Cause Notice for the earlier period when the first Show Cause Notice did not invoke extended period. It was also his case that the judgment of Hon ble Supreme Court in the case of M/s Nizam Sugar Factory [2006 (197) ELT 405 (SC)] will not be applicable to the facts of the present case. It was strongly argued by the learned Authorised Representative that extended period under Section 11A and penalties under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of Central Excise Rules, 2002, are invocable in this case. 3. Shri Paritosh Gupta, learned Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand pertaining to the period 2001-02, 2003-03, is hopelessly barred by limitation as it was raised as late as on 02.01.2006. I do hold that raising of demand, after more than thirteen months of first demand, on charge of suppression, mis-declaration that too of prior period (01-02 02-03), in view of Hon ble S.C. judgment in Nizam Sugar case as reported at 2006 (197) ELT 465 (SC) was definitely time barred. However, the short levy as was pointed out in the show cause notice dt.30.11.2004, which pertained to the period 03-04 and the short levy pertaining to the period 04-05, which was raised on 06.01.2006, these two demands are not barred by limitation in as much as the cost declared or for that matter, the value on which the duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) that the same are payable by the Assessee. The First Appellate Authority after giving a detailed finding in Para 8 of the OIA dt.13.02.2007, has held that the mutuality of interest is established. M/s Mahalaxmi Fabrics Mills Ltd have also taken a ground that the payment of duty@ 115% of the cost of production would have made M/s Mahalaxmi Exports Ltd eligible for more credit and because of revenue neutrality of entire exercise, no demand is sustainable. The concept of revenue neutrality for not confirming the demand cannot be raised for the period within the limitation. If the duty is payable by the Appellant is paid by the Appelalnt, the credit of the same can be taken by M/s Mahalaxmi Exports Ltd. 7. In view of the above f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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