TMI Blog2019 (3) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Whether the revenue neutrality can be invoked in the present case for determining the issue of limitation in the present case? - APPEAL No. E/2168/2010 - IO/69/2018 - Dated:- 21-2-2019 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri C.S. Biradar, Advocate, for appellant Shri S. Hasija, Superintendent (AR), for respondent ORDER Per: Mrs. Archana Wadhwa The appellant was engaged in the manufacture of spares of cranes/ crane parts etc., which were cleared to their Vadodara branch by way of stock transfer. The appellant was clearing the same on payment of duty and the dispute in the present appeal relates to wrong assessable value adopted by the appellant. 2. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority did not find favour with the above submissions of the appellant and confirmed the demand along with interest and imposition of penalty of identical amount. The said order was upheld by the Commissioner (Appeals) and hence the present appeal. 5. After hearing both the sides, we find that the challenge is only to a part of the demand being barred by limitation. Admittedly, the duty paid by the appellant was available as credit to their Vadodara branch. It is also a fact that the appellant was filing monthly returns and the assessable value adopted by the appellant was being reflected. In such a scenario, it can be safely concluded that the entire situation was revenue neutral, in which case there can be no mala fide on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance was upon decisions in the case of IT Ltd [1999 (34) ELT 562 (T)], AurbindoPharma Ltd [2007 (216) ELT 389 (T)] and Sundaram Fasteners [2009 (237) ELT 55 (T)]. 2.0 In case of Jay Yushin [2000 (119) ELT 718 (T-LB)] a larger bench of tribunal laid down the following criteria for determining revenue neutrality and its consequences. (a) Revenue neutrality being a question of fact, the same is to be established in the facts of each case and not merely by showing the availability of an alternate scheme; (b) Where the scheme opted for by the assessee is found to have been misused (in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. In this connection, reliance was also placed on the judgments of this Court in Amco Batteries Ltd. v. Collector of Central Excise, Bangalore reported in 2003 (153) E.L.T. 7; Padmini Products v. Collector of Central Excise reported in 1989 (43) E.L.T. 195; and Formica India Division v. Collector of Central Excise reported in 1995 (77) E.L.T. 511. 23.We do not find merit in the above contentions. In this matter, we are concerned with the application of the above judgments to the facts of this case. The words wilfulness and intent in Section 11A are expressions of mental state at the time of manufacture and clearance of the goods. The situs of the levy of central excise is on manufacture. Pricing and value of clearances are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears and when the assessee had been dealing with other traders who operated from licensed factories. It was for the assessee to explain the reasons for not getting the units registered or licensed. It was for the assessee to explain its failure to maintain the records under the 1944 Act and rules thereunder. In each of the above decisions, we find that there was substantial compliance of the rules under the said Act. In each of the decisions the findings indicate technical non-compliance and not total non-compliance of the rules. It was for the assessee to explain the basis of its alleged bona fide impression. In this connection, no evidence was put before the commissioner about receipt and utilization of the compound in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that revenue neutrality cannot be a possible defence against invoking extended period of limitation as per proviso to sub-section(l) to section 11A for demanding duty short paid. 6.0 In case of Greaves Ltd [2015 (322) ELT 772 (SC)] and Asarwa Mills [2015 (329) ELT 216 (SC)] has held that issue of inclusion of certain costs in the value of the final product was clarified by the Board vide its circular dated 30.10.1996 and the demand for the period prior to one year would be hit by limitation. I am unable to appreciate the relevance of the said authorities in facts and circumstances of present case. The issue in present is plainly that of determining value under Rule 8 of Central Excise (Determination of Price of Excisable Goods) Rule, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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