TMI Blog2015 (11) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ny penalty under section 11AC. Since the duty demand is for the period beyond the normal limitation period of one year, it would be sustainable only if the proviso to section 11A(1) could be invoked which can be invoked only if non-payment or short payment of duty is on account of fraud, wilful mis-statement, collusion, suppression of facts or contravention of any provisions of the Central Excise Act, 1944 or of the rules made therein with intent to evade the payment of duty on the part of the assessee. In exactly the identical situations, the penal provisions of section 11AC are attracted. When with regard to the penal provisions of section 11AC, the Assistant Commissioner has given a finding that he does not find any evidence of wilful mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anode Slime was determined on the basis of the value of its silver content. However, the respondent while determining the value of Anode Slime in this manner, also deducted the element of duty on silver. The Department, however, was of the view that since during the period of dispute, the silver was fully exempted from duty, such abatement of duty which was exempt and as such was not payable, was not allowed. It is on this basis that after issue of show cause notice dated 20/5/2005, the Jurisdictional Assistant Commissioner vide order-in-original dated 30/09/2005 confirmed the duty demand of ₹ 94,930/- against the respondent along with interest. However, no penalty was imposed under section 11 AC. On appeal being filed to Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not required to be abated. He also pleaded that the setting aside of the duty demand by the Commissioner (appeals) on the ground of Revenues neutrality is also not correct. He also pleaded that since in the present case, the dispute is about the value of a by-product and since the cost of production of by-product cannot be determined on the basis of CAS-IV standard, Rule 9 read with Rule 8 of the Central Excise Valuation Rules, 2003 would not be applicable, the value of Anode Slime has been correctly determined under Rule by best judgment method. He, therefore, pleaded that the impugned order is not correct. 6. We have considered the submissions from both the sides and perused the records. 7. In this case the duty demand for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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