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2018 (7) TMI 851

Time limitation - Revenue held that the demand for the period 01.04.2004 to 31.03.2006 as time barred, but, demand from April 2006 onwards was maintained - case of appellant is that once the fact of the transaction has come to the notice of the Audit and the said period was held time barred, for the subsequent period it cannot be said that there is any suppression of fact - Held that:- The Ld. Commissioner has admitted that the issue was raised in the Audit Report dated 20.10.2008 in respect of .....

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d on the ground of limitation. - Appeal No. E/1422/2010-DB - ORDER No. A/11417 / 2018 - Dated:- 12-7-2018 - Mr. Ramesh Nair, Hon'ble Member (Judicial) And Mr. Raju, Hon ble Member (Technical) For the Appellant : Shri Devashish K. Trivedi, Advocate For the Respondent : Shri Amit Kumar Mishra, Deputy Commissioner ( AR ) ORDER Per : Mr. Ramesh Nair The brief facts of the case are that the appellant are engaged in the manufacture of excisable goods, namely, (i) Laser system for material processi .....

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ted to those machines separately under a cover invoice without payment of duty. A show cause notice dated 13.04.2009 was issued whereby the value of software amount of ₹ 2,49,38,772/- was proposed to be added in the assessable value of laser cutting machines, Diamond cutting machines for the purpose of assessment in terms of Section 4 of Central Excise Act, 1944 and secondly a demand of central excise duty on the said value amounting to ₹ 40,68,408/- was proposed, interest under Sect .....

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fter 01.01.2007 is sustainable along with applicable interest under Section 11AB of the Central Excise Act, 1944. Being aggrieved by the said impugned order, the appellant filed the present appeal. 2. Shri Devashish K. Trivedi Ld. Counsel appearing on behalf of the appellant submits the software was not installed in the machines manufactured and supplied by the appellant, the software was separately declared and the same was sold separately as such under the CD. The software supplied separately .....

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ned software, but, it falls under customized software which is meant for a particular customer, therefore, it is covered under the exemption. As regard the value of clearances after 01.01.2007, he submits that the entire demand is time barred as for the period 2004-05, 2006-07, the show cause notice issued on 13.04.2009. He submits that the Ld. Commissioner (Appeals) has accepted that the issue was raised in the Audit Report by the Deputy Commissioner of Central Excise, Audit. However, though he .....

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85 (19) ELT 493 (Tribunal) (vi) Commissioner of Central Excise, Delhi-I vs. Hi-Tech Electronics Industries - 2014 (314) ELT 689 (Tri.-Delhi). (vii) Commissioner of Central Excise, Delhi-III vs. Carrier Aircon Ltd. - 2005 (184) ELT 113 (S.C.) (viii) Al-Falah (Exports) vs. Commissioner of Central Excise, Surat-I - 2006 (198) ELT 343 (Tri.-LB). (ix) V.V.F Ltd. Vs. Commissioner of Central Excise, Daman - 2010 (251) ELT 426 (Tri.- Ahmd.) (x) Commissioner of Central Excise, Kolkata - IV vs. Birla NGK .....

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ind that the present issue was raised vide Audit Report No. 80/2008-09 Dated 20.10.2008. In the said Audit Report, issued from F. No.VI/1(b)-65/1A/2008-09/AP-AIII by the Deputy Commissioner, C.Ex.(Audit), Ahmedabad-III, the date of which audit is undertaken is mentioned as 22-23-24/09/2008. The Period for which current audit is undertaken is mentioned as April, 2006 to August, 2008. Further, date of last audit is mentioned as 28.08.2006 to 30.08.2006. The appellant has submitted copy of last aud .....

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and there was no dispute from auditors regarding short levy - Revenue having failed to produce any evidence to prove suppression of facts by assessee with intent to duty evasion, demand is time-barred and extended period not invocable - Section 11A of Central Excise Act, 1944. [para 9] In light of the above circumstance and decision mentioned above, I hold that the demand for the period from April-2004 to March-2006 is time barred. However, in the audit conducted for the succeeding period i.e. .....

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ppeals) held the demand for period 01.04.2004 to 31.03.2006 as time barred. We failed to understand why the demand for remaining period should not be held time barred on the same analogy. The ld. Commissioner (Appeals) observed that the last Audits conducted on 28.08.2006 to 30.08.2006, and if the Audit officers have not raised this issue for the subsequent period, no suppression of fact cannot be alleged against the appellant. Therefore, we do not agree with the discriminative finding given by .....

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