TMI Blog2016 (9) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods are not to be added when the turnover is computed to decide on the entitlement to benefit of Notification No. 8/2003-CE. Assessee has been manufacturing various kind of items and some of these items may not have the facility of abatement under Central Excise law. Assessable value has to be determined by reducing the sale price in such a manner so as to arrive at the price on which the manufacturer would have sold the said goods in wholesale. It is to be noted that value has been defined in Explanation (c) to the Notification No. 8/2003; therefore, total turnover to decide on eligibility is to claim benefit of Notification No. 8/2003 to be computed by totalling the value of specified goods only. The submission of the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is established that there has not been any suppression of facts or wilful misstatement on the part of the appellants. Therefore, for the present facts law of Central Excise does not permit the Revenue to invoke extended period of limitation. In other words, Deptt. cannot issue demand for the period beyond one year from the relevant date, which is the date of Show Cause Notice (SCN). Therefore, demand for the period beyond one year is set aside and demand for the period of one year preceding the relevant date which is 29.12.2006, the date of SCN, is sustained. Imposition of penalty - Held that:- it is clear that the appellant No. 2 Shri Atul Tandon, partner in the appellant No. 1 firm has not knowingly been involved in any manner in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Prabhat Kumar on behalf of the appellants at the strength of written submission submits that: (A) The valuation and denial of benefit of exemption Notification No. 8/2003-CE dated 1.3.2003: (i) Retail prices charged to customers in the shop cannot be taken as the transaction value under Section 4 of Central Excise Act, which provides for assessment on wholesale price. (ii) Intimation have been sent on valuation of goods. (iii) Regular returns being filed giving all the details of goods manufactured etc. (iv) Total turnover of items includes excisable and non excisable goods which are subject to central excise levy. Average of percentage of non excisable goods is over 40%, not liable to be included in the turnover. (v) F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no mens rea, therefore, no penalty is imposable. (ii) Reliance is placed on the following cases: (a) 2005 (187) ELT 489 P.V. Ukkru International Trade Vs. CC, Cochin. (b) 2005 (182) ELT 59 CCE, Chandigarh Vs. Pilot Products. (c) 2005 (18) ELT 140 Arya Filaments (P) Ltd. Vs. CCE, Indore. 6. The ld. AR Shri Amresh Jain representing the Revenue has reiterated the findings given by the lower authorities. 7. We have carefully considered all the facts along with submissions of both sides and the case laws cited. 8. We shall consider and decide on the issues involved in the following paras. 8.1 Valuation Eligibility to claim benefit of Notification No. 8/2007-CE (supra): - The appellant pleads that the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement. The submission of the assessee for giving them the benefit of abatement is correct; and assessable value of excisable items being manufactured by the assessee/appellant is to be arrived at after giving them the benefit of abatement. The ld. Advocate for the appellants have referred to a copy of Notification No. 14(NT) dated 1.3.2008 claiming the facility of abatement, whereas the goods have been assessed at the retail sale price of subject items. This aspect has not been discussed by the lower authorities, when it is so then the department has to consider/give abatement as admissible for the goods being manufactured by the assessee before arriving at the liability of central excise duty against the assessee. The matter, therefore, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue demand for the period beyond one year from the relevant date, which is the date of Show Cause Notice (SCN). Therefore, demand for the period beyond one year is set aside and demand for the period of one year preceding the relevant date which is 29.12.2006, the date of SCN, is sustained. In this regard, our view is reinforced by the Hon ble Supreme Court s decisions in the cases of Pahwa Chemicals (supra), and Tamil Nadu Housing Board (supra) and Uniworth Textiles (supra). 8.3 Levy of penalty: From the facts on record and the submissions of the appellants, it is clear that the appellant No. 2 Shri Atul Tandon, partner in the appellant No. 1 firm has not knowingly been involved in any manner in contravention of laws of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
