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TMI Blog2010 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the ER-1 returns filed by them, this fact had not been disclosed - not the case for total waiver from the requirement of pre-deposit – Part pre-deposit waived - E/103/2010 - 464/2010-EX(PB) - Dated:- 9-7-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri L.P. Asthana, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - This is an application for waiver from the requirement of pre-deposit of duty demand of Rs. 10,23,209/- alongwith interest under Section 11AB of the Central Excise Act, 1944 and penalty of equal amount imposed on the appellant under Section 11AC ibid, upheld by the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Notification No. 56/02-C.E. did not appear to be available. It is on this basis that a show cause notice dated 28th March 2008 was issued to the appellant for recovery of allegedly wrongly taken self credit amounting to Rs. 10,39,166/- under Notification No. 56/02-C.E. alongwith interest on it at the applicable rate under Section 11AB and also for imposition of penalty on them under Section 11AC of Central Excise Act, 1944 and also under Rules 25 and 27 of the Central Excise Rules, 2002. The show cause notice was adjudicated by the Additional Commissioner, who vide order-in-original No. 183-CE/ADC/J K/08 dated 27th March 2009 confirmed the duty demand of Rs. 10,39,166/- alongwith interest and imposed penalty of equal amount on them und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage of the exemption notification, it is clear that it assumes that the duty paid is equivalent to the duty payable and hence refund would be admissible of whatever duty had been paid through PLA, that since the case being revenue neutral, and there was no mala fide intention on the part of the appellant, imposition of penalty under Section 11AC of the Central Excise Act was not called for, that in view of the above, the appellant have a strong prima facie case in their favour and hence the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 2.2 Shri B.L. Soni, learned DR, opposed the appellant's plea for waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation and transit insurance thereof, the transport and insurance expenses charged from the customers on equalised basis would not be includible in the assessable value. He also pleaded that the duty demand had been correctly confirmed by invoking proviso to Section 11A(1) of Central Excise Act, as the applicant had never declared that though their sales are at the factory gate they are paying duty on the assessable value including the expenses of transport and insurance from the factory gate to the customer's premises and that this wrong payment of duty and wrong refund was detected only in course of audit. He, therefore, pleaded that this is not a case for waiver from the requirement of pre-deposit of duty demand, interest and penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... current on his own. 4. For availing of this exemption, an assessee first determines his total duty liability in respect of the clearances made during a month and thereafter pays the duty to the extent possible through Cenvat credit account and after exhausting the Cenvat credit balance, if some duty is still payable, the same is paid through the PLA and it is this duty paid through PLA, which is refunded in terms of the provisions of this notification. There is one more very important benefit available to the units located in J K and availing this exemption and this benefit is under Rule 12 of the Cenvat Credit Rules, 2004 and Rule 10 of the Cenvat Credit Rules, 2002 and according to this rule, notwithstanding anything contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that his customers can avail more Cenvat credit, than the duty actually paid. 5. In this case, the appellant have not produced any evidence that their sales were on FOR destination basis that is during the transit from the factory to the customer's premises the ownership remained with the appellant, the appellant were liable for any damage to the goods or loss of the goods during transit and that the expenses of transport and insurance from the factory gate to the customer, premises are an integral, part of the price of the goods. On the contrary, the Assistant Commissioner in the order-in-original has given a clear finding that the appellant's sales were at the factory gate, though in addition to the price of the goods they we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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