TMI Blog2015 (5) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... r (AR), for the Respondent. ORDER [Order per : Ramesh Nair, Member (J)]. - The appeal is directed against Order-in-Appeal No. BPS/(408) 181A/13470/2004, dated 16-12-2004 passed by the Commissioner of Central Excise Customs (Appeals), Aurangabad, wherein ld. Commissioner confirmed demand of ₹ 4,04,487/- however set aside the demand of ₹ 1,04,507/- and appeal filed by the appellant was disposed of accordingly. The fact of the case is that the appellant are engaged in the manufacture of tyres and tubes and flaps of different sizes falling under Chapter 40 of Central Excise Tariff Act, 1985. After manufacture of tyres and tubes the appellant pack bought out flaps in the composite packing and cleared the same. However the appellant is not including the value of bought out flaps in the assessable value of tyres and tubes, cleared as set of tyres for the purpose of discharging excise duty. The appellant is taking permission under Rule 51A of erstwhile Central Excise Rules, 1944 from time to time, however one permission letter bearing F. No. V CH 40 (10) 72/TB/92/Pt-1, dated 17-8-1999 contains condition No. (10) i.e. value of flaps should be included in the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essable value of tyres and tubes. However, he confirmed the demand of ₹ 4,04,487/- on the ground that this amount already paid by the appellant but same was not paid under protest. However demand of ₹ 1,64,508/- was set aside. Aggrieved by the said order the appellant is before us. 2. Shri Prashant Paranjape, ld. Counsel for the appellant submits that as regard issue of inclusion of value of flaps and total duty due thereupon was investigated and consequent to the investigation appellant paid duty of ₹ 4,04,487/- and subsequently show cause notice was issued and the same is culminated in the adjudication order. He submits that appellant has defended the case right from adjudication stage uptill the stage of this appeal on merit. Therefore the amount paid by them must be treated as paid under protest. In view of this fact order of the Commissioner (Appeals) inasmuch as confirmation of demand of ₹ 4,04,487/- on the ground that the same was not paid under protest is not legal and correct. He submits that only issue before this Tribunal is that confirmation of demand by the ld. Commissioner (Appeals) on the ground that the same was not paid under protest by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already paid by the appellant and amount of ₹ 1,64,508/- was also proposed to be demanded which was not paid by the appellant. The appellant defended the show cause notice but in the adjudication order both the demand amounts were confirmed. The appellant challenged this demand on the merit before the Commissioner (Appeals), who though categorically held that value of flaps is not includible in the assessable value of tyres and tubes and set aside the demand of ₹ 1,64,508/- however demand of ₹ 4,04,487/- was confirmed only on the ground that the appellant has not paid this amount under protest. With this set of facts it is clear that the ld. Commissioner held that the value of flaps is not includible in the assessable value of tyres and tubes. This part of the order was not challenged by the Revenue therefore the same attained finality. Since both the demand i.e. ₹ 4,04,487/- and ₹ 1,64,508/- were covered under show cause notice and the appellant have been challenging these amounts right from the show cause notice stage, payment of ₹ 4,04,487/- shall be deemed to have been made under protest. Moreover, once the ld. Commissioner (Appeals) has take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded. In the instant case the department has not been able to prove that there was any intention of the Appellants to evade the payment of duty. In the instant case the period involved is from August 1999 to 22-2-2001 whereas the show cause notice was issued on 6-2-2003 i.e. after expiry of a period of 1 year. It is evident from the correspondence exchanged between the department and the Appellants that there can be no wilful suppression or misstatement of facts etc. Therefore, on the limitation also the case does not survive. As the demand of duty itself is not sustainable, the imposition of penalty under Section 11AC read with Rule 173Q and demand of interest under Section 11AB is not sustainable. 7. In view of the above, I am inclined to accept the contentions of the Appellants. I, therefore, set aside the confirmation of demand worth ₹ 1,04,507/- and imposition of penalty and demand of interest. Since the Appellant have paid ₹ 4,04,487/- without any protest, I have no alternative but to confirm the same. The impugned OIO is modified to the above extent. From the above findings, we find that it is absolutely absurd that in one hand it was held that value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by limitation holding the corrigendum as legal, proper or valid, does not arise. Those were without authority of law. To that extent, the submission of the ld. Counsel and the reliance on case laws as extracted above is very much relevant and are apt to the fact and circumstances of the present case. There, the question of penalty does not arise. There is no material which warrants to hold that even there was an element of evasion or avoidance of duty on part of the noticee company as the confusion was prevailing and percolating up to the highest level. Since the payment made by the party was on written communication by way of demand which on merit was sustainable and payable and hence the demand so paid is hereby held as legal, proper, sustainable and maintainable. They do not deserve any refund neither on merit nor on limitation. However, jacking them with further liabilities after limitation period is over, is not justified and cannot be maintained and sustained. Therefore, the proceedings started by issuance of show cause notice dated 10-9-2004 and tried to be fortified or enhanced by corrigendum are held to be inappropriate and illegal. Thus, demands and other proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is not includible in the assessable value of the tyres and tubes and on other hand simultaneously confirmed the demand of ₹ 4,04,487/- already paid only on the ground that the same was not paid under protest are clearly contradictory which is not permissible in law. As regard reliance placed by the ld. AR on the case of Mahavir Aluminium Ltd., we find that in the said judgment, it was held that since assessment order asking the assessee to include value of bought out item in the assessable value was not challenged by them, duty paid was considered as without protest and consequent refund claim not maintainable. The facts of the said judgment are different from the facts of the present case. The appellant challenged show cause notice, Order-in-Original now by this appeal challenging the impugned order secondly the cited judgment of Mahavir Aluminium Ltd. is for refund claim whereas the present case is for demand of duty. Therefore ratio of this judgment relied upon by the Revenue is not applicable in the present case. In view of our above discussions, we are of the view that impugned order inasmuch as confirmation of demand of ₹ 4,04,487/- is not sustainable. Hence the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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