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2016 (3) TMI 945 - CESTAT MUMBAI

2016 (3) TMI 945 - CESTAT MUMBAI - TMI - Suo moto availement of credit of duty - excess paid duty adjusted against short paid duty - extended period of limitation invoked - Demand of differential duty - Held that:- As on pointed out by the audit team, the appellant have discharged the differential duty of bonfide belief that excess paid duty can be adjusted against short paid duty, difference is the amount for which the show cause notice was issued. It is pertinent to mention that demand of show .....

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from the date when the differential duty paid by the appellant, nothing has prevented the department to issue a show cause notice within one year from the date of payment of excise duty. There is no suppression of fact, fraud and mis-statement etc on the part of the appellant therefore demand is patently time bar. Therefore set aside the impugned order on limitation and allow the appeal of the appellant. - Decided in favour of assessee - Appeal No. E/1358/10 - A/85885/16/SMB - Dated:- 19-2-2016 .....

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appellant is engaged in the manufacture of Parts of Lifts which is used by them and discharging the excise duty thereon under Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. In respect of goods cleared during the period 2006-07 they paid duty on the basis of costing of the goods which was during the preceding financial year i.e. 2005-06 and had not paid differential duty as per the costing for the current year i.e. 2006-07. Later, to arrive at the cor .....

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#8377; 21,65.393/- and Education Cess ₹ 48,860/- and paid remaining differential duty BED ₹ 20,24,365/- Ed. Cess ₹ 40,487/- and Secondary Higher Education Cess ₹ 4,142/-. The appellant paid differential duty in the month of October, 2007 after the short payment had been pointed out in the departmental audit. On scrutiny of the record, it was alleged in the show cause notice that as there was no provision of suo moto availement of credit of duty, appellant ought to have ma .....

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claim under 11B should have been filed hence amount as paid stands recoverable. Aggrieved by the order-in-original, appellant filed appeal before the Commissioner (Appeals) who rejected the appeal of the appellant, therefore appellant is before me. 3. Ms. Aparna Hirandagi, Ld. Counsel for the appellant submits that the appellant time and again requesting the department for their option of provisional assessment as per Rule 7 of Central Excise Rules, 2002. In this regard she referred to letter s .....

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period 2005-06 in the year 2006 on the basis of final cost audit report. Similarly, they were suppose to pay differential duty for the period 2006-07 on the basis of cost audit report. However, on the basis of audit observations appellant calculated the duty, adjusted the excess paid duty and net differential duty of ₹ 20,68,994/- was paid and intimated to the department vide letter dated 22/9/2007. The show cause notice for the amount of excess duty paid which was adjusted against short p .....

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.C.E LTU, Bangalore [2012(276) ELT 332 (Kar.)] (d) Mahindra Ugine Steel Co. Ltd. vs. Commissioner of C. Ex, Pune [2012(278) ELT 215 (Tri.Mumbai)] 4. On the other hand, Shri. N. N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that appellant have not discharged the differential duty suo moto, whereas, same was discharged only when pointed out by the audit party therefore the appellant has suppressed the fact of .....

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cutta Vs. Hindustan National Glass & Indus Ltd. [2005 (182) ELT 12 (S.C.)] (f) Modipon Limited Vs. Commissioner of Central Excise, Ghaziabad [2004 (174) ELT 126 (Tri. Del)] (g) Sara Industries Ltd. Vs. Commissioner of Central Excise, Jaipur [2005 (188) ELT 398 (Tri. Del.)] (h) J.K. Industries Ltd Vs. Commissioner of Central Excise, Jaipur [2005 (188) ELT 398 (Tri. Del.)] 5. On careful consideration of submissions made by both sides and perusal of records, I find that the case can be decided .....

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can be arrived at in next year only after finalization of accounts of particular financial year. It is fact on record that appellant following method prescribed in the law, discharging the duty on the provisional price at the time of clearance of the goods and it is also fact of record that they paid differential duty for the period 2005-06 in the year 2006-07 on the basis of final cost audit report. As regard the issue of the present case that the duty demand was made for the period 2006-07, t .....

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