TMI Blog2010 (2) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... nit. During the period of dispute (April to December, 2004), the appellant-unit had stock-transferred some of their products to their sister unit on payment of duty as assessed without following CAS-4 formula of valuation of captively consumed goods. An audit party from the department, in December, 2004, found out that the appellant had short-paid duty of excise on the goods transferred to the sister unit, on account of not having followed CAS-4 formula. They pointed this out to the appellant, but the latter did not take any corrective steps. Later on, in January, 2006, they produced certain documents before the range officer in response to a summons issued by the latter. Thereafter, investigations were made into the case and show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the differential assessable value was determined and accordingly differential duty was paid by the assessee. 2. In the show cause notice, it was alleged, inter alia, that the correct facts were suppressed/willfully mis-stated by the assessee with intent to evade payment of duty. On this basis, the extended period of limitation was invoked for demanding the differential amount of duty based on the cost accountant s certificate, and the provisions of Section 11AB and Section 11AC were also invoked against the assessee. In their reply to this notice, the assessee denied the above allegations and submitted that the entire demand of differential duty was time-barred. They submitted that, as Cenvat credit of whatever duty paid by them was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21 (S.C.) and this Tribunal s decision in IFB Industries v. Commissioner 2005 (179) E.L.T. 487 (Tri.-Mum.). 5. In his rejoinder, the learned Counsel for the appellant, has argued that the case of Mahindra Mahindra Ltd. is distinguishable. It is submitted that, in that case, inter-unit transfer of goods was not the subject matter unlike in the present case. 6. I have given careful consideration to the submissions. As already noted, there is no challenge to the demand of duty on merits. In other words, the liability of the assessee to pay duty on the subject goods on the basis of CAS-4 formula stands acknowledged. The contest to the demand of duty is on the ground of limitation. The demand of duty is for the period from April to Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit to the assessee. The Apex Court held that the availability of Modvat credit to an assessee by itself was not conclusive or decisive. It might be one of the considerations. How much weight is to be attached to it would depend upon the facts of each case. According to the learned JDR, in the present case, the facts and circumstances, apart from availability of Cenvat credit to their sister unit, are enough to support the demand of differential duty for the extended period of limitation. These circumstances have been narrated by the learned JDR and I have considered the same. It is not in dispute that the appellant did not determine the assessable value of the subject goods on the basis of the CAS-4 certificate of the cost accountant even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istance to the invocation of the extended period of limitation. The learned Counsel argued that the Apex Court s decision in Mahindra Mahindra s case is not applicable to the facts of the present case. I do not agree. It appears from the judgment of the Apex Court that the Court had in its mind a case in which an assessee might claim the benefit of Modvat credit and raise the plea of revenue-neutrality against a demand of duty for the extended period of limitation. This fact is abundantly clear from Para 4 of the judgment of the Apex Court which reads as follows : 4. There can be number of eventualities where extended period of limitation in terms of proviso to section 11A may be available to the Department despite availability of Mod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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