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TMI Blog2008 (3) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory the value adopted for payment of duty is on average basis. Under law the value to be adopted at the time of clearance from the factory is covered by Rule 7 of the Central Excise Valuation Rules, 2000. This value should be the price prevailing at the time of clearance from the factory to the depot. The learned Counsel pointed out that it takes five to six months time for getting the correct value on the basis of the sale pattis. The Departmental Officer visited the respondent s unit on 26-2-2003 and found out that the respondents had not discharged duty liability in terms of the law. There was correspondence between the respondents and the Revenue. It was pointed out that subsequent to the visit of the Departmental Officers the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 25 of the Central Excise Rules, 2002 is not sustainable in view of the ratio of the Supreme Court s judgement in the case of Rastriya Ispat Nigam Ltd. - 2004 (163) E.L.T. A-53 (S.C.) and Karnataka High Court s judgment in the case of Krishna Pipes Ltd. -2004 (54) RLT 17 (Karnataka). 4. Revenue is highly aggrieved over the impugned order of the Commissioner (Appeals). According to the Revenue in the present case the Commissioner (Appeals) should not have set aside the penalty. The Revenue s stand is that had the departmental Officers not visited the unit and pointed out the discrepancies, the respondent would not have paid the differential duty at all. This is strongly countered by the learned Consultant. He submitted that there is pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very fact that the respondents had been discharging duty liability periodically and also that they had informed the details of the Consignment Agents to the department shows that there cannot be any fraud. In any case, as far as the present appeal is concerned, the differential duty had been paid even before the issue of show cause notice. Therefore, it cannot be said that provisions of Section 11A(2B) would not be applicable. Moreover, the learned Commissioner while setting aside the penalty has relied on the decision of the Apex Court [2004 (163) E.L.T. A53 (S.C.) and Karnataka High Court [2004 (54) RLT 17 (Karnataka). Hence, I do not find any merit in the Revenue s appeals. Hence, the same is dismissed. (Pronounced and dictated in o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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