TMI Blog2018 (4) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... view that in such circumstances, the extended period is not invocable. The appeals are remanded back to the Adjudicating Authority to pass a fresh order by applying the normal period of limitation - appeal allowed by way of remand. - Appeal No. E/549,550/2012 - ORDER No. A/10725-10726/2018 - Dated:- 10-4-2018 - Dr D.M. Misra, Hon'ble Member (Judicial) And Shri Devender Singh, Hon ble Member (Technical) For the Applicant : Shri A Tripathi, Advocate For the Respondent : Shri S N Gohil, Authorised Representative ORDER Per : Shri Devender Singh These appeals are filed against of OIA-83-84/2012-AHD-III-/KANPAZHAKAN/COMMR-A-/AHD dt 30/03/2012 passed by the Commissioner of Central Excise (Appeals) -AHMEDABAD-III. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case to Commissioner (Appeals) for fresh adjudication, pursuant to which the Ld Commissioner (Appeals) has passed the impugned order dt 30.3.2012. In the said order, the Ld Commissioner (Appeals) has directed that the demand should be worked out by the value of cylinder including development and design charges on the basis of accepted life span as certified by the Cost Accountant and upheld penalty on pro rata basis under 11AC of the Act, based on the such recalculation and also upheld the penalty imposed under Rule 209 to the extent of 20% of recalculated duty. Aggrieved from the same, the appellants has filed these appeals. 3. The Ld Advocate for the appellants at the outset submits that they are not contesting the demand on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd (supra). As has righty been pointed out by the Ld Advocate, that this Tribunal in similar set of facts has taken the view that in such circumstances, the extended period is not invocable. In this regard, the findings of the Tribunal in the case of CCE, Hyderabad vs. ITW Signode (India) Ltd are relevant and are extracted below: 6. On our careful consideration, we notice that the issue on merits is covered against the assessee as rendered by the Larger Bench in the case of Mutual Industries Ltd. Therefore, we hold that the assessee was required to have included the cost of the tooling/moulding charges collected from the customers while realising the same separately in the commercial invoice. We are now required to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Glass Co. P. Ltd., 1999 (85) ECR 94, Creative Cartons v. CCE, Mumbai, 1999 (106) E.L.T. 79 = 1999 (64) ECC 738 (T) and Velpack Industries Ltd. v. CCE, Mumbai in Appeal No. E/6222/92-A it was held that cost of moulds and dies supplied free of cost are not includible in the assessable value. In Flex Industries Ltd. v. CCE, 1997 (91) E.L.T. 120 a different view was taken. Subsequently, a Larger Bench of the Tribunal resolved the issue in Mutual Industries Ltd. v. CCE, Mumbai, 2000 (119) E.L.T. 578 (Tri.) holding that amortization of cost of moulds was necessary. Under these circumstances, the appellant may not be burdened with the liability to pay penalty especially when it had deposited the duty amount before the issue of show cause notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequences. Later, in Paras 9 and 10 have noted as follows :- 9. From the facts stated above, particularly the fact that entire movement of waste and scrap to the job workers and receipt of ingots manufactured by the job workers is recorded in regular books of accounts and proper documentation is maintained in form of delivery challan and that there was no reason for the appellant to suppress as it was entitled to have facility of Modvat scheme, it would be difficult to hold that there was any wilful suppression on the part of the appellant which would empower the authorities to invoke extended period of limitation under proviso to Sec. 11A(1) of the Act. This has been made clear repeatedly by this Court. In Padmini Products v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that in the present case it cannot be held that there was suppression of any material for the purpose of evading duty. In view of the conflicting judgments on the issue, the appellants are entitled to seek the benefit of time bar. Therefore, while upholding the matter on merits in the Revenue s favour, we have to hold that the demands are barred by time and not liable to recovery. The appeal is disposed off in the above terms. 7. Following the principle of law laid down in the judgments of this Tribunal in ITW Signode (India) Ltd (supra) we hold that the extended period of limitation is not invocable in the present case. Accordingly, the appeals are remanded back to the Adjudicating Authority to pass a fresh order by applying the nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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