TMI Blog2005 (4) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason that the prices at which the goods are sold to M/s. JISCO are different from those to the other buyers, he has jumped to the conclusion that the interest free advance has influenced the price. This is not tenable as the findings have not been arrived at properly. we also find that the price at which the goods have been sold to M/s. JISCO prior to the receipt of advance and after regularization of the advance, more or less remained the same. This is evident from the statement submitted by the appellants. There is also force in the contention of the appellant that the price at which goods were sold to M/s. JISCO depended on the prices at which their competitors sold similar goods to them. Thus, the appeals should be allowed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 29-6-1998 to 30-11-2000 in terms of Section 4 of the Central Excise Act, 1944 read with Rule 5 of the Central Excise Valuation Rules, 1975 and Rule 6 of Central Excise Valuation Rules, 2000. He demanded a differential duty of Rs. 9,07,59,504/- under proviso to Section 11A(1) of the Central Excise Act, 1944. He imposed a penalty of Rs. 5 crores on M/s. JVSL under Section 11AC of the Central Excise Act, 1944. Further interest under Section 11AB was also demanded. He imposed a penalty of Rs. 50 lakhs on M/s. JISCO under Rule 209A of the erstwhile Central Excise Rules, 1944 read with Section 38A of the Central Excise Act, 1944. The appellants have strongly challenged the impugned order. 2. Shri Rohan Shah, the learned Advocate appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same buyer during a period when no advance was received. In the appellants case, the advance has not resulted in a price to M/s. JISCO, which was any more favourable than that otherwise available to the other buyers. On the contrary, the appellants have led evidence to demonstrate that the price charged from M/s. JISCO in various instances are either the same or higher than the price charged from the other buyers not making an advance. The appellants have further laid evidence to establish the fact that the price charged for the goods from M/s. JISCO has not been influenced by the advance, inasmuch as the price charged from M/s. JISCO during the period when the advance was in operation as a trade advance is comparable to the price charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t determinable in law. Hence, the allegation of undervaluation is without any merit and contrary to the facts. The impugned order is bad in law and deserves to be set aside. (ix) The fact of receipt of the advance is duly declared in Note 16 to Schedule 17 of the Balance Sheet for the year 1998-99 and Note 13 to Schedule 17 of the Balance Sheets for the year 1999-2000, and copies of the said Balance Sheets were available to the Department. The Hon ble Tribunal, in Hindalco Industries Ltd. v. CCE - 2003 (161) E.L.T. 346 (Tri.), has held that the Balance Sheets of the Companies are Public documents and the allegation that the data stated in the Balance Sheet was suppressed from the Central Excise Authorities is unsustainable. In view of this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press provision under Section 4 of the Act and various decisions, it had been their bona fide belief that advances do not have any connection to the sale of HR Coils and, therefore, no duty is payable. On going through the facts of the case, I am of the opinion that a lesser quantum of penalty will be sufficient to meet the ends of justice. 6. Moreover, the fact of giving interest free advance to M/s. JVSL is mentioned in the Balance Sheet of the appellant company. In view of the findings of the adjudicating authority and the ratio of CEGAT s decision in Hindalco Industries Ltd. v. CCE, Allahabad - 2003 (161) E.L.T. 346 (Tri.-Del.), wherein it is held that demand raised on the basis of information appearing in Balance Sheet is not sustainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, the goods must be of identical quality. These factors have not been properly analysed by the adjudicating authority in its findings. Simply for the reason that the prices at which the goods are sold to M/s. JISCO are different from those to the other buyers, he has jumped to the conclusion that the interest free advance has influenced the price. This is not tenable as the findings have not been arrived at properly. We also find that the price at which the goods have been sold to M/s. JISCO prior to the receipt of advance and after regularization of the advance, more or less remained the same. This is evident from the statement submitted by the appellants. There is also force in the contention of the appellant that the price at which go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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