TMI Blog2022 (2) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... y liability. However, on perusal of the impugned order, we find that the adjudicating authority has not specified as to why recourse to Rule 4 is required - there is no discussion as to whether all other parameters prescribed in Rule 4 ibid have also been considered. Hence, in absence of proper substantiation based on the material facts of the case, it is neither proper for the adjudicating authority to come to a conclusion and at the same time not possible to determine the true value of the impugned goods for ascertainment of the correct duty liability. The period of dispute involved in this case is from April, 2006 to March, 2007. By invoking the proviso appended to Section 11A ibid, the department had issued the show cause notice to the appellant, seeking for recovery of the adjudged demands. Insofar as recovery of short/non-levied or non-payment of duty is concerned, the said statute mandates that the Central Excise officer shall issue the show cause notice within one year from the relevant date on the person, requiring him to show cause as to why the duty amount shall not be recovered. The period of one year is prescribed for effecting recovery in the normal circumstances - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the entire exercise was revenue neutral, the appellant could not have achieved any purpose to evade the duty. Thus, in absence fulfilment of the ingredients mentioned in the proviso clause to Section 11A ibid, confirmation of the adjudged demands in the impugned order will not stand for judicial scrutiny. There are no merits in the impugned order insofar as it has confirmed the adjudged demands by invoking the extended period of limitation contained in the proviso appended to Section 11A ibid - appeal allowed - decided in favor of appellant. - E/51/2011 - Final Order No. A/86444/2021-WZB - Dated:- 8-7-2021 - Shri S.K. Mohanty, Member (J) and P. Anjani Kumar, Member (T) Shri Rajesh Ostwal, Advocate, for the Appellant. Ms. Anuradha Parab, Authorized Representative, for the Respondent. ORDER This appeal is directed against the impugned order dated 16-8-2010 passed by the Learned Commissioner of Central Excise Customs, Nagpur. Vide the impugned order, the adjudicating authority has confirmed the Central Excise duty demand of ₹ 1,15,88,715/- along with interest and also imposed equal amount of penalty on the appellant. 2. Briefly stated, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that determination of assessable value under Rule 4 ibid cannot be considered as legal and proper. The Learned Advocate also submitted that the entire exercise done in this case is revenue neutral inasmuch as whatever excess duty leviable on the goods cleared from the appellant s Unit-B1 would be available as Cenvat credit to the other units. The Learned Advocate also submitted that the proceedings initiated by the department for confirmation of the adjudged demands are barred by limitation of time inasmuch as the notice was issued beyond a period of one year from the relevant date. In this context, he has relied upon the judgment of Hon ble Supreme Court in the case of Nirlon Limited v. CCE - 2015 (320) E.L.T. 22 (S.C.), the Hon ble Madras High Court judgment in the case of CCE v. Tenneco RC India - 2015 (323) E.L.T. 299 (Mad.) and the decision of this Tribunal in the case of Rallis India Limited v. CCE - 2016-TIOL-1699-CESTAT-MUM, to substantiate that the show cause proceedings are barred by limitation of time and as such, the adjudged demands cannot be confirmed on the appellant. 4. On the other hand, the Learned AR appearing for the Revenue reiterated the findings re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed as to why the fact of existence of sale of the same goods by the appellant to independent buyers and as to why value adopted in such cases cannot be made applicable to the sale to sister concern. He has not also discussed about the difference in price claimed from the other units. Further, there is no discussion as to whether all other parameters prescribed in Rule 4 ibid have also been considered. Hence, in absence of proper substantiation based on the material facts of the case, it is neither proper for the adjudicating authority to come to a conclusion and at the same time not possible to determine the true value of the impugned goods for ascertainment of the correct duty liability. 7. The period of dispute involved in this case is from April, 2006 to March, 2007. By invoking the proviso appended to Section 11A ibid, the department had issued the show cause notice to the appellant, seeking for recovery of the adjudged demands. Insofar as recovery of short/non-levied or non-payment of duty is concerned, the said statute mandates that the Central Excise officer shall issue the show cause notice within one year from the relevant date on the person, requiring him to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigor itemized in the proviso clause under Section 11A should not be available to the department and accordingly, the demand, if any, should only be confined to the normal period of one year. In the present case, since the period of dispute is from 2006 to 2008 and the show cause notice was issued on 15-3-2010, we are of the considered view that confirmation of the entire adjudged demands are barred by limitation of time as per the aforesaid statutory provisions and as such, the impugned proceedings are not maintainable on the ground of limitation alone. Further, we find that the principle or doctrine of revenue neutrality is applicable in the case in hand inasmuch as the higher duty amount payable by the appellant under Rule 4 ibid would be available to the sister s unit as Cenvat credit. Furthermore, we also noticed from the available records that the department was in doubt with regard to applicability of the proper valuation rules to the facts of the present case. This is evidenced from the show cause notice, where the proposals were made to confirm the duty demand by considering the provisions of Rule 8 ibid; whereas, the impugned order has confirmed the demand for contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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