TMI Blog2004 (4) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Tariff Act, 1985 for captive consumption in manufacture of goods within the factory and are also clearing these goods to their other units on payment of duty on the value arrived at on costing certificate issued by the Cost Accountant in terms of Rule 6(b)(ii) of Central Excise (Valuation) Rules, 1975. The Cost Audit Group of Central Excise have conducted cost audit and noticed that the appellants have adopted lesser values to the extent of Rs. 5.56 for one kg of compound rubber during the period from 10/95 to 9/96 resulting in short-levy of the Central Excise duty. Based on the report of the Cost Audit Group, a show cause notice was issued to the appellants and the Commissioner confirmed the demand of duty amounting to Rs. 59,12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2003 (159) E.L.T. 1046 wherein it was held that sale of goods by one unit to other unit of same assessee under Modvat Scheme is revenue neutral as whatever duty paid in one unit is available in the next unit as credit. Therefore, demand under Section 11A in such cases are unwarranted and suppression of facts cannot be alleged in this case. He also referred to the decision of this Bench in case of Smithkline Beecham Consumer Health Care Ltd. v. CCE, Visakhapatnam, reported in 2003 (59) RLT 180 (CESTAT - Bang.) wherein it was held that - "2. After hearing both sides and considering the submissions made and the material on record, it is found, it is on record that both the Assessing Officer and the Cost Auditor had examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake or suppression of fact, which is not wilful, cannot be a cause to invoke the proviso clause of Section 11A(1) as in this case. It is found that no charge of fraud or collusion have been invoked. In view of that and the fact that proper documentation have been maintained and produced without demur or delay, the entire movements are recorded. Modvat credit for the duties allegedly now being determined as short-paid would have been eligible to the appellants at packing stations, there cannot be a conclusion of 'wilful suppression of facts with intent to evade duty'. Extended period to recover duty, consequently, as invoked, would not be invocable in this case also, as held by the Apex Court in the case of AMCO Batteries Ltd., [2003 (15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that in this case, the appellants have filed cost account certificate based on the instructions available at the relevant time. They could not include the extra amount in valuation of the products used by them on the basis of Board Circular dated 30-10-96 as it was not available at the relevant time. Secondly, whatever duty they were paying at the manufacturing unit of intermediate goods, the same has been taken as credit by other unit where these goods were being taken for manufacture of finished products. Therefore, following ratio of the Tribunal decision in case of P.T.C. Industries Ltd. (supra), we find that there is revenue neutrality in this case. Commissioner has not given any evidence that the failure on the part of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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