9911796707
TMI Blog2017 (3) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period from March, 1994 to March, 1996 should not be enhanced to Rs. 15,000/- Per Metric Ton, the clearances of all the higher value O.A.S. Flats during the period from 05-08-1993 to February, 1994, be not treated as S.S. Flats, the clearance of all O.A.S. Flats during the period from March, 1994 to July, 1994, be not treated as S.S. Flats and the assessable value of the same should not be enhanced to Rs. 27,000/- Per Metric Ton, the assessable value of all the clearances of S.S. Rounds during the period from March, 1994 to June, 1995 should not be enhanced to Rs. 27,000/- Per Metric Ton, the clearances of T.O.R. Bars, M.S.- RIL and Waste & Scrap should not be treated as actual clearances during April, 1994 to September, 1996, Central Excise duty of Rs. 4,20,99,820/- on the clearance of S.S. Flats during the period from March, 1994 to 29-11-1994 for the differential value of Rs. 2,80,66,547/- should not be demanded under Section 11A of Central Excise Act, 1944, Central Excise duty of Rs. 14,94,550/- on clearance of S.S. Waste & Scrap during the period from March, 1994 to March, 1996 for the differential value of Rs. 99,63,668/- should not be demanded under Section 11A of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take Cenvat credit of duty paid by M/s Rathi Ispat Limited M/s Rathi Udyog Limited used to manufacture final product out of the said inputs and on the basis of value of clearance of those final products sold again to M/s Rathi Ispat Limited they used to pay duty. The investigation made allegations against M/s Rathi Ispat Limited that they undervalued their final product. The said allegations were carried forward to M/s Rathi Udyog Limited stating that M/s Rathi Udyog Limited also undervalued their final product since their inputs were undervalued. There were proposals to enhance assessable value and there were proposals to demand duty on the differential value. 4. M/s Rathi Udyog Limited contended before the Original Authority that the entire demand of undervaluation was unsustainable because the three pricelist were filed by them before the Assistant Commissioner, Division-III, Ghaziabad. Further during the earlier period pricelists were filed in the year 1993 which were approved by Assistant Commissioner. Subsequently filed three pricelist were dealing with the period for which there was proposal for enhancement of assessable value. The said pricelist were neither approved nor r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C. Rathi & Shri Pradeep Rathi under Rule 209-A of Central Excise Rules, 1944. He has further imposed penalty of Rs. 20,00,000/- on Shri M.L. Agarwal under Rule 209-A of Central Excise Rules, 1944. 5. The appellants preferred, above stated, four appeals aggrieved by the said Order-in-Original No. 17/Commr./GZB/2007 dated 28-03-2007. 6. The ld. Counsel for the appellants submitted that in respect of allegation of undervaluation the Show Cause Notice contends that it appeared to Revenue that M/s Rathi Udyog Limited received the balance consideration that is 'Actual Value Received - Actual Value Declared' from the customers in cash without reflecting it in the Books of Accounts. He submitted that such statement is only a presumption and there is no evidence available on record for arriving at such a presumption. He, further, contended that when the pricelist was pending before the Divisional Assistant Commissioner and prices were declared and pricelist was not finalized the demand in extended period was not sustainable. Further, the charges in the Show Cause Notice impugned do not indicate invocation of proviso to Sub-section (1) of Section 11A of Central Excise Act, 1944. He conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arrive at figures of production and that was not done so in those cases and that mere electricity consumption cannot be the only basis for determine of duty liability. Further, the matter was carried before Hon'ble Supreme Court as reported at 2011 (269) E.L.T. A108(S.C.). The Hon'ble Supreme Court dismissed the petition filed by Commissioner of Central Excise, Meerut-I against the judgment of Hon'ble High Court of Allahabad reported at 2011 (269) E.L.T. 337 (Allahabad) which is Commissioner of Central Excise, Meerut-I Versus R.A. Castings Pvt. Ltd. Relying on the said ruling of Hon'ble Supreme Court the ld. Counsel for the appellants has contended that in a similar manner consumption of gas cannot be the basis for determination of quantum of production. 7. It has been further contended that entire case made out by the Department on the basis of so called investigation against RIL that they misclassified the goods e.g. Stainless Steel Billets were cleared as Other Alloy Steel (OAS), which allegation was primarily based on the test reports. It has been contended by the appellant that though they were not concerned with said allegation against RIL, yet a perusal of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n office Orders No. 06/1993 dated 01/09/1993, 11/1993 dated 22/10/1993, 03/1994 dated 21/02/1994, 08/1994 dated 24/08/1994 (page 667/668/669/) filed in Paper Book. 14. As regards the role of co-appellants, it was contended that nowhere in the entire order, the individual role was discussed. Merely because they were holding key posts in the company, the same in itself was not sufficient to prove the ingredients of Rule 26 of Central Excise Rules, 2002. Penalty on M.L. Aggarwal has been imposed for the only reason that he had explained role of different persons and that he was the Vice President of company. Further, penalty on Pradeep Rathi was proposed primarily on the basis that he did not respond to the summons issued to him. In any case, it was contended that when the appellants have proved that the Department had miserably failed to substantiate the charge of clandestine production and removal, on account of gas consumption and also the demand on account wrong classification on the part of RIL, the impugned demand is not sustainable at all, no question of imposition of individual penalty arises. 15. The ld. D.R. has taken us through findings of the Original Authority and suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
