TMI Blog2004 (8) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... issions made by them both oral as well as in writing. 3. We notice that in so far as the merits of the case is concerned, the issue is decided against the assessee in terms of the Larger Bench judgement rendered in the case of Mutual Industries Ltd. v. CCE [2000 (117) E.L.T. 578]. The Larger Bench has taken the view that the cost of the moulds are required to be added in the value of the finished products and hence the assessee was required to have added the value of the cost of the tooling/moulding charges collected from the customers. 4. The ld. Counsel for the assessee has taken an argument that the demands are barred by time on the ground that they had filed the classification list with regard to the manufacture of moulds and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t circumstance it would be difficult to hold that there is any wilful suppression on the part of the assessee which would empower the authorities to invoke the extended period of limitation under proviso Sec. 11A of the Act. The Apex Court has applied its earlier ruling rendered in the case of Padmini Products v. CCE [1989 (43) E.L.T. 195 (S.C.) = 1989 (4) SCC 275]. It is his submission that even if they had collected the cost of the moulds from the customers then the customer would have been entitled for the Modvat benefit and hence there was no question of appellants suppressing the facts to defraud the Revenue. He submits that this Apex Court judgment in an identical case was applied by this Bench in the case of Creative Micro Systems v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Paradise Plastic Enterprises Ltd. on an identical issue pertaining to the includability of cost of moulds in the assessable value the Tribunal noted that there was no suppression of facts and an intention to evade the payment of duty and on that ground held that the demands were time barred. The findings recorded in Paras 3 and 4 are noted herein below : - "3. It is contended on behalf of the appellant that the delay in payment of duty on the amortized cost of the moulds and dies supplied free of cost by four parties was only for the reason of delay in getting the required information from them. There was no suppression of facts on the part of the appellant nor was then any intention to evade payment of duty. Invocation of Sec. 11AC is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n different orders of the Tribunal had taken conflicting views on the liability, it cannot be contended that there was wilful suppression of fact on the part of the appellant in order to avoid payment of duty. Under these circumstances, we, therefore, hold that imposition of penalty under Sec. 11AC was not justified in this case. We, therefore, set aside the demand of penalty against the appellant under the impugned order and allow the appeal." We notice that the Apex Court also in the case of Amco Batteries Ltd. have noted at the outset as follows :- "1. It is apparent that in taxation matters, amendments, clarifications, exemption notifications or their withdrawal play an important role in increasing litigation. Repeatedly, it is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently observed that mere failure or negligence on the part of the producer or manufacturer either not to take out a licence in case where there was scope for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not, would not attract Sec. 11A of the Act. 10. In the present case also there is no material on record from which it could be inferred or established that duty of excise was not levied or paid by reason of any fraud, collusion or any willful 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 that scrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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