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TMI Blog2006 (2) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed at the dealers premises. These goods were seized under Mahazar. In respect of the sealed goods a Show Cause Notice dated 26-7-2002 was issued answerable to the Additional Commissioner of Central Excise, Bangalore-I Commissionerate. The proceedings have already been completed by the Additional Commissioner in his Order-in-Original dated 27-2-2003. Detailed investigations were undertaken and it was found that the appellants did not pay duty on the goods removed even after crossing the SSI exemption. There was also evidence for undervaluation. Hence another Show Cause Notice dated 6-8-2003 was issued answerable to the Commissioner of Central Excise. The Commissioner of Central Excise passed the impugned order. 3. In the impugned order, he has confirmed demand of duty of Rs. 26,63,508/-, the duty on the goods manufactured and cleared for the period from 1-6-2001 to 30-1-2002 under proviso to Section 11A(1). He has confirmed a demand of Rs. 28,23,031/- being the Central Excise duty paid on the goods manufactured and removed during the period from 1-2-2002 to 31-3-2003 under proviso to Section 11A(1). This short payment is on account of undervaluation. He imposed a penalty of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - therefore, I hold that the total amount shown in individual invoices becomes the transaction value for that transaction . At lines 28 to 30 of Para 31, P. 31 of the impugned order, the Respondent found I have no doubt with regard to the Chartered Accountant certificate, accounts, bank statements and invoice-wise realisation, being correct which are shown in the record. (iv) The notice is time barred and the extended period cannot be made applicable since the investigation commenced on 30-1-2002 by Mahazar and the statements and there were goods subjected to seizure on the same date valued at Rs. 8,04,050/-. This being the case, the Show Cause Notice should have been issued within six months from the date of seizure as per Section 12 of the Central Excise Act, 1944 which makes applicable under Section 110 of the Customs Act, 1962 vide Notification No. 68/63-CE (NT). The notice is time barred. The appellants relies on the decision of Madhya Pradesh High Court in Vilayat Hussain v. U.O.I. - 1997 (95) E.L.T. 19 (M.P.) which was maintained by Supreme Court in 1999 (108) E.L.T. A59 (S.C.)] (v) There can be no case for alleging of clandestine removal or under-valuation mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipur [2004 (173) E.L.T. 73 (Tri. - Del.)] (3) CCE, Chandigarh v. Nabha Steels Ltd. [2004 (169) E.L.T. 345 (Tri. - Del.)] (4) Haryana Acrylic Mfg. Co. Pvt Ltd. v. CCE, New Delhi [2001 (130) E.L.T. 562 (Tri. - Del.)] (5) Ludhiana Food Products v. CCE [1989 (43) E.L.T. 648 (Tribunal)] (6) CCE, Surat-1 v. ND Textiles [2001 (168) E.L.T. 381 (Tri. - Mumbai)] (7) Asstt. Collector of Cus., Madras-I v. Govindasamy Ragupathy [1998 (98) E.L.T. 50 (Mad.)] (8) Surjeet Singh Chhabra v. UOI [1997 (89) E.L.T. 646 (S.C.)] (9) P.K. Ravindran v. CCE, Cochin [2003 (156) E.L.T. 182 (Mad.)] (10) Columbia Electronics Ltd. v. CCE, Indore [2002 (143) E.L.T. 635 (Tri. Del.)] (11) Malik Sons v. CCE, Faridabad [2002 (141) E.L.T. 492 (Tri. - Del.)] The case laws relied by the learned Advocate were distinguished by the learned SDR in the following manner :- S. No. Case Law Remarks 1. Vilayat Hussain v. UOI , 1997 (95) E.L.T. 19 (MP) The facts of the case law cited by the appellant are completely different from the facts of the case on hand. The case law cited by the appellant does not relate to a situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the records of the case carefully. The learned Advocate urged the point that on the basis of investigation conducted by DGCE proceedings were initiated answerable to the Additional Commissioner of Central Excise and therefore a fresh set of proceedings on the same fact are not admissible. He cited number of case laws on the issue. The show cause notice answerable to the Additional Commissioner was issued on 26-7-2002. The issue before the Additional Commissioner in those proceedings was (a) the confiscability of the goods seized in the appellant s premises and the premises of the dealers at Kerala, Hyderabad and Coimbatore (b) duty demand, imposition of penalty, interest were also subject-matters of those proceedings. In other words there is no allegation of undervaluation. Undervaluation was not a subject-matter of the proceedings before the Additional Commissioner. The fact that the goods seized have not been duty paid was admitted by Shri Saleem Pasha, Managing Director of the appellant s unit. It is also seen that the appellant took out Central Excise registration only after the investigation by the Departmental officers. The appellants started his manufacture on 19-6-2001. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the same set of investigations, the proceedings before the Additional Commissioner has not dealt with undervaluation. Despite the fact that the yellow coloured slips were recovered as early as 30-1-2002, no proper investigation appears to have been conducted on those slips. However, we have before us a statement of Shri Saleem Pasha dated 29-5-2003 admitting under-valuation and the modus operandi adopted. This statement given under Section 14 of the Central Excise Act cannot be ignored. Moreover, there is corroboration of the statement dated 29-5-2003 in the statement given by Shri M Abdul Waheed, Proprietor M/s. Blue Star, dated 30-1-2003. The adjudicating authority has demanded differential duty based on these evidences for the period from 1-2-2002 to 30-1-2003 for an amount of Rs. 28,23,031/- under proviso to Section 11A(1). Since undervaluation is a clandestine activity, invocation of larger period is justified. 11. As regards the learned Advocate submission that the adjudicating authority has already found that the invoice represents the correct transaction value and also his observation on the Chartered Accountant s certificate, accounts, Bank statement and invoice-wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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