TMI Blog2024 (4) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESWAR-II [ 2023 (5) TMI 720 - CESTAT KOLKATA] wherein on similar facts, this Tribunal has held that when the entire exercise is revenue neutral, the demand is not sustainable as the duty paid will be available as credit for their sister unit and there is no loss of revenue to the exchequer. The demand confirmed in the impugned order on this count is not sustainable and accordingly, the same is set aside. Short payment of duty on the goods sent free of cost to customers - HELD THAT:- The appellant has adopted the valuation method of 110% of the cost, to pay duty on the free supplies to customers - it is observed that when similar goods are not sold by the appellant, the valuation adopted by the Appellant is valid and thus we hold that there is no short payment of tax. Accordingly, the demand confirmed in the impugned order on this count is not sustainable and hence the same is set aside. Denial of CENVAT Credit taken on the goods rejected by the customers and returned to the supplier and subsequently replaced - HELD THAT:- When the goods are purchased as inputs but are later returned for being defective and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashwini Chandrasekaran, Advocate for the Appellant Shri P.K. Ghosh, Authorized Representative for the Respondent ORDER The present appeal has been filed against the impugned Order-in-Original No. 10/COMMISSIONER/CE/KOL-VII/ADJN/2012-13 dated 28.02.2013 passed by the Commissioner of Central Excise, Kolkata, wherein the Ld. commissioner has confirmed the demand of Central excise duty and reversal of irregular credit totally amounting to Rs.66,20,634/-, along with interest and penalty. 2. The Appellant, M/s. Tega Industries Ltd. is a Company engaged in the business of manufacture and distribution of wear resistant rubber products and products for mineral processing industries at its plant in Samali and Kalyani in the State of West Bengal. A SCN dated 19.01.2012 was issued to the appellant demanding Central Excise duty and reversal of Cenvat Credit on various issues. The Notice was adjudicated vide the impugned order wherein the demand of Central excise duty and denial of Cenvat credit as proposed in the Notice has been confirmed along with interest and equal amount of duty as penalty. Aggrieved against the impugned order, the appellant has filed this appeal. 3. The appellant summariz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has already been issued with the same allegation for the prior period, extended period cannot be invoked by the Department. Reliance in this regard is placed on the decision of the Tribunal in the case of Birla Corporation Ltd. vs. Commissioner of CGST and Central Excise (2023) 11 Centax 132 (Tri.-Del) , affirmed by the Hon ble Apex Court in the case of Commissioner of CGST and Central Excise, Jabalpur vs. Birla Corporation Ltd. (2023) 11 Centax 133 (S.C.). 3.4. Further, the appellant submits that with respect to transfer of goods to sister unit, there can be no suppression, misstatement, or fraud since there is no profit motive , as held by the Tribunal in the case of Commissioner of C. Ex., Vadodara vs. Sicgil Industrial Gases Ltd. 2009 (245) E.L.T. 693 (Tri.-Ahmd). 3.5. Accordingly, the appellant contended that the demand confirmed in the impugned order on this count is not sustainable. 4. Regarding short payment of duty amounting to Rs.4,51,526/- on the goods sent free of cost to customers, the appellant submits that they have correctly adopted the valuation method (110% of the cost) to pay duty on the free supplies to customers. The department found the method as incorrect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled for this credit. 7. Regarding demanding duty of Rs.3,17,284 on account of difference in book stock and physical stock in respect of Plate Hardox and MS Plate, the appellant submits that duty has been demanded on the assumption that the said goods have been removed without payment of duty. The appellant submits that the difference in the book stock was found only for one specific consignment due to the reason that the book stock of M.S. plates is periodically updated on confirmation of the said inputs being used for the manufacture of finished goods. However, this has been completely ignored by the adjudicating authority while passing the Impugned Order. Further, the Appellant submits that no proof/evidence has been cited by the department to claim that the goods have been clandestinely removed by the Appellant without payment of duty. It is a settled law that no demand can be raised without any proof of clandestine removal. Reliance in this regard is placed on the decision of the Tribunal in the following cases: Krupalu Metals Pvt. Ltd. v. CCE ST Rajkot 2024-VIL-167-CESTAT-AHM-CE Kakkar Complex Steels Pvt. Ltd v. CCE Ludhiana 2013 (290) E.L.T. 103 (Tri.-Del) CCE Raipur v. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Industrial Gases Ltd. 2009 (245) E.L.T. 693 (Tri.-Ahmd). 11.4. Following the ratio of the decisions cited above we hold that the demand confirmed in the impugned order on this count is not sustainable and accordingly, we set aside the same. 12. Regarding short payment of duty amounting to Rs.4,51,526/- on the goods sent free of cost to customers, we observe that the appellant has adopted the valuation method of 110% of the cost, to pay duty on the free supplies to customers. The department wants the appellant to adopt the value of similar goods sold by the appellant for delivery at any other time nearest to the time of removal of goods under assessment. The Appellant submits that the goods sent free of cost are samples and there is no comparable sale made to any other customer. We observe that when similar goods are not sold by the appellant, the valuation adopted by the Appellant is valid and thus we hold that there is no short payment of tax. Accordingly, we hold that the demand confirmed in the impugned order on this count is not sustainable and hence we set aside the same. 13. Regarding denial of CENVAT Credit of Rs.4,71,599/- taken on the goods rejected by the customers and ..... 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