9911796707
TMI Blog2007 (7) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... provision that specified processes themselves will be treated as manufacturing processes. 2. The appellant was also required under Rule 173-B to file declaration relating to goods manufactured. This declaration indicated, inter alia, the description of the goods, their Excise classification and the rate of duty attracted. The appellant had been filing such declarations. For e.g. in a declaration filed on 1-3- 99, the appellant, inter alia, made the following declarations: SL No. Description of goods Chapter heading/ sub heading Effective rate of duty No. & date of the relevant notification(s) if any having bearing on the applicable rate of duty B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that, upon allowing Modvat credit due, the appellant had paid excess duty of about Rs.11 lacs as against the short levy of Rs. 2.12 crores alleged in the show cause notice. 4. Subsequent to the aforesaid adjudication show cause notice dated 29-3-2004 was issued alleging a short levy of over Rs. 11 crores for the period March 1999 to April 2002 in respect of bulked yarn. The appellant contested the demand on ground of limitation as well as on merits. On merit, the contention of the appellant was that, the amount of duty has been incorrectly worked out and if, the appellant is granted the benefit of Modvat credit and valuation of the goods is done on cum duty basis, there will be an excess payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The learned Counsel would further submit that the Modvat credit computation made in the order is contrary to the factual position certified by the accountant 6. The learned Counsel would emphasize that a second notice cannot be issued by Revenue by invoking the proviso (extended period) under Section 11A, in as much as facts were already known at the time of issue of the first notice. Reliance in this connection is being placed on the judgment of the Hon'ble Supreme Court in the cases of ECE Industries Limited v. C.C.E., New Delhi - 2004 terms of (164) E.L.T. 236 (S.C.), Nizam Sugar Factory v. C.C.E., A.P. - 2006 (197) E.L.T 465 (S.C.), Hyderabad Polymers ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of goods (Daffodil Yarn) in their monthly RT-12/ER-1 Returns and thus willfully suppressed the material facts from the department by not giving the ex goods is act/correct description of goods in their monthly RT-12 return. The noticee contravened the provisions of Rules 9, 52, 52A & 54 of the erstwhile Central Excise Rule 1944/ Rules 4, 6, 8, 11 and 12 of Central Excise Rules 2001/2002 with intent to evade payment of duty. Therefore, the extended period of limitation is invocable in this case. On the above reasoning, penalty under Section 11AC of the Act is also imposable on the notice". 9. We have already noted that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of this factor, which is immaterial for assessment, cannot be treated as suppression of facts. 11. We have already noted that the first proceeding ended in a finding of fact that there was only excess payment of duty as against the alleged short levy. In the present proceeding also, the amount confirmed under the impugned order is a small part of the amount alleged in the notice. Most of that amount also is not due if the assessment is carried out on the correct value i.e. net of duty already paid. It is well settled that in all cases of short levy, valuation is to be made on cum-duty basis. It was done so in the adjudication order dated 23-12-2003 also. The assessee had rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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