9911796707
TMI Blog2017 (5) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 1998. The dispute pertains to the period April 1998 to July 1999 during which the appellant was clearing their final products on payment of duty to their depot at Navi Mumbai for onward sale to the wholesale dealers. Revenue mounted an investigation into the affairs of the appellant on the basis of intelligence that the appellant has resorted to undervaluation of their goods by paying duty on a lesser price when compared to selling price at their Mumbai depot. After conclusion of investigation, Revenue issued show-cause notice dt. 09/04/2002 demanding differential Central Excise duty amounting to Rs. 37,22,585/- for the period 21/04/1998 to 27/07/1999 pertaining to clearances made through depot at Navi Mumbai. The demand came to be confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied is a further point for reconsideration. vi. The findings of Commissioner that the documents given for consideration is only within the jurisdiction and competence of the JDC is not a correct finding. It was for the Commissioner to have examined the issue in the light of the law laid down in the Tribunal judgments and circular and should have examined the issue of adjustments of duty in the light of the judgments. 2. The impugned order dt. 01/11/2004 was passed by the adjudicating authority in the de novo proceedings in which he once again confirmed the demand of the differential duty to the extent of Rs. 37,22,585/- along with an order to appropriate an amount of Rs. 16,93,453/- already paid by the appellant. In addition to order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the two prices and duty paid in excess or short. They had also claimed that wherever amount paid is in excess, the same should be adjusted against the demand in respect of those cases where there is a short payment. It is his submission that the appellant will be liable to pay the differential duty only in those cases where the assessable value adopted for payment of excise duty at the time of clearance from the factory is shown as less in comparison to the depot prices prevalent on the same day or on a day immediately prior to such clearances. He has also submitted that Revenue at the time of quantification of demand has also adopted, in many cases, prices prevalent at the depot on a date subsequent to the date on which the goods wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance, can be adopted in terms of Rule 4 of the Valuation Rules, 1975. He also submitted that the time bar will not be applicable as has been found by the adjudicating authority in para 17. Accordingly he prayed for upholding the impugned order. 7. Out of the total demand as per show-cause notice amounting to Rs. 37,22,585/-, the appellant is seriously disputing an amount of Rs. 14,61,527/- which is attributable to the invoices (as per show-cause notice) where the date of depot invoices taken by the Department is subsequent to the date of clearances. In terms of the statutory provisions for determining of assessable value prevailing at the relevant time, in cases where goods are cleared on payment of duty from the factory to the depot for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,61,527/-). The objections raised on behalf of the appellant to the demand as above are: i. The entire demand is liable to be set aside as time barred. If not accepting, ii. Amounts paid in excess should be allowed to be adjusted against the demand without filing separate claim for refund. The submission of the appellant is that no allegation of suppression of fact can be made against the appellant since the appellant had provided the details of stock transfer invoices with reference to those depot invoices where the refund was admissible. Accordingly, they have argued that nothing stopped the Department from asking for the rest of the stock transfer invoices where duty might have been paid short with reference to depot invoices. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 1998. The pattern of payment of duty in respect of goods cleared on stock transfer basis to the depots underwent a substantial change w.e.f. 1996, when the depot was defined as a separate place of removal. The relevant valuation rule was also amended. The Board also issued clarificatory Circular dt. 14/10/1996. In spite of that, the pattern of payment of duty on such depot clearances were in a state of flux for considerable amount of time. The controversy in the present case is pertaining to the period immediately after commencement of manufacture by the appellant in their Bangalore factory. Consequently, we are of the view that there is no justification for imposition of penalty on the appellant and hence the same is set aside. Our view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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