TMI Blog2019 (5) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... volves on factual issues which have been considered by the original authority, affirmed by the first appellate authority and the Tribunal. Thus, there is no question of law, much less a substantial question of law arising for consideration in this appeal. Appeal dismissed - decided against appellant. - Civil Miscellaneous Appeal No.2254 of 2019 And Civil Miscellaneous Petition No.9668 of 2019 - - - Dated:- 30-4-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : Mr.Girish Neelakandan for Mr.K.S.Guruprasad For the Respondent : Mr.A.P.Srinivas, Senior Standing Counsel JUDGMENT T.S.SIVAGNANAM, J. This appeal filed under Section 35G(2) of the Central Excise Act, 1944 (hereinafter referred to as the CEA, 1944 ) read with Section 86(7) of the Finance Act, 1994, is directed against the order dated 13.06.2017 in Final Order No.40968 of 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for brevity, the Tribunal ). 2.The appeal is by the appellant/assessee. 3.The following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, for the purpose of availing the benefit of Notification No.9/2002-CE as amended, calculated the aggregate value of clearances by excluding the cost of the items supplied free of cost by the Oil Companies. This, according to the respondent-Department, resulted in short payment of duty during the said period. Further, for the clearances effected from September' 2000 to September' 2004, the assessee had not amortised the cost of moulds supplied free of cost by the Oil Companies. 7.According to the Department, for arriving at the transactional value, the value of the moulds supplied free of cost by the Oil Companies have to be taken into account while arriving at the assessable value for the purpose of payment of appropriate duty of excise in terms of Section 4 of the CEA, 1994 read with Rule 6 of the Central Excise (Valuation) Rules, 2000. The Department called upon the assessee to produce the Chartered Engineer's certificate in respect of number of pieces which can be manufactured out of the moulds supplied by the Oil Companies and to produce necessary documents relating to the moulds cost, vide communication dated 05.11.2004. In terms of the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y interest amount of ₹ 20,472/- on the delayed payment of the differential duty and interest shall not be demanded from the assessee under Section 11AA/11AB of the CEA, 1944, for the periods made applicable. Along with the show cause notice, there were two annexures which furnish the full details as to how the proposed duty liability was computed. 9.The assessee submitted their reply dated 17.02.2005 raising a preliminary objection stating that the show cause notice dated 17.01.2005, received by them on 19.01.2005, has been issued beyond the period of one year and the same is time barred in terms of Section 11A(1) of the CEA, 1944. Further, it was contended that there was no cause for invoking the proviso to Section 11A(1) of the CEA, 1944, as there is no fraud, collusion, wilful misstatement or wilful suppression. It was contended that the Deputy Commissioner admits that the allegation against the assessee emanated upon verification of the documents submitted by the assessee, hence it is not a case of suppression. Alternatively, it was contented that even in case of suppression of facts, it is for the Department to prove the same beyond doubt. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2005. Similarly, the demand for interest was stated to be bad in law. The appellate authority held that the assessee has knowingly adopted two different methods of working to arrive at the assessable value, viz., included cost of free supply of goods to the invoice while arriving at the assessable value for the clearances of goods on payment of duty, however, they did not include the cost of such free supply of goods while arriving at the aggregate value of clearances of Rupees One Crore under SSI exemption notification. Therefore, the appellate authority held that the decisions relied on by the assessee more particularly, the decision of the Hon'ble Supreme Court in CCE vs. Chemphar Drugs and Liniments reported in 1989 (4) ELT 276 SC will not assist the case of the assessee. The same decision was pressed into service by the assessee to state that the show cause notice was barred by limitation, as it was issued after the expiry of one year of the knowledge of the Department. 14.The first appellate authority pointed out that in the case of Chemphar Drugs and Liniments (supra), the party had filed declaration of facts to the Department, but the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied free of cost is not sustainable in law and the respondent-Department erred in holding that the assessee suppressed value of free supply of materials with an intent to evade payment of duty. It is further contended that the respondent grossly erred in levying penalty equivalent to that of the differential duty despite the fact that the assessee has paid substantial portion of the differential duty liability well before the issuance of the show cause notice. Further, it is contended that the show cause notice is barred by limitation. 18.An appeal before this Court challenging the correctness of the order passed by the Tribunal can be entertained only if this Court is satisfied that there is a substantial question of law to be decided in the appeal. In other words, this Court cannot act as a third appellate authority and examine the factual details as recorded by the first appellate authority and the Tribunal, re-appreciating the same to come to a different conclusion. Thus, unless and until the assessee is able to convince the Court that there is a substantial question of law arising for consideration, the appeal cannot be entertained. In the preceding paragraphs, ..... 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