TMI Blog2003 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cost of other materials and cost of production to arrive at the full price of the Exhaust System. Appellant was making the said addition also. It is submitted that in January, 2002 appellant felt that the value taken by them for the free supply items was erroneous. Accordingly, they wrote to the Superintendent, Central Excise, Chennai on 2nd January, 2002 intimating that they had adopted a "Standard Price initially" and by oversight, the variation of cost was overlooked. This letter also pointed out that "variation is on both sides namely resulting in a higher value and in some cases a decrease in value. The appellant also explained the reason as under : "The variation in the cost of the free issue items arose mainly calculating due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re any proceedings were initiated by the Excise authorities. It is also being pointed out that a charge of intent to evade duty cannot arise in the present case at all inasmuch as whatever duty was paid by the appellant was available as credit in the hands of M/s. Hyundai Motors India Ltd. who used the item as original equipment in the manufacture of cars. Appellants have also submitted that their case is covered by the decision of the Supreme Court in the case of AMCO Batteries Ltd. v. C.C.E., Bangalore - 2003 (153) E.L.T. 7 (S.C.). Specific reliance has been made on the observations of the Apex Court in Paras 10 and 11 of the judgment which are reproduced below : "10. From the facts stated above, particularly the fact that entire moveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or the Rules made thereunder with intent to evade payment of duty. It was a bona fide belief on the part of the appellant scrap and waste, which was recovered while manufacturing batteries, was exempt from levy of excise duty. Further, appellant was entitled to get benefit of Modvat scheme, therefore, there was no justifiable reason for the appellant to suppress any fact." 4. Apart from the above the submissions on the aspect of time-bar, the contention of the appellant is that, as a matter of fact, there would have been no short-levy inasmuch as the value adopted by M/s. Hyundai Motor India Ltd. was incorrect. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Audit party. Nor is any reference made to audit objection raised. Thus, this finding is not supported by any material on record. 7. That apart, the fact remains that the error made by the appellant was both ways, resulting in higher valuation in some cases and lower valuation in some other cases. The appellant had no gain in the matter also inasmuch as whatever duty was paid by them was being reimbursed to them by M/s. Hyundai Motors India Ltd. and duty paid by the appellant was available as credit to the appellant's buyer. Therefore, appellant's submission that short-levy took place on account of oversight (to take note of variation in prices) appears to represent the correct factual position. There is also merit in the appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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