2010 (6) TMI 419

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..... n record, the appellants are engaged in manufacture of excisable goods falling under Chapter 29 of First Schedule to CETA, 1985. They had sold their final products to M/s. Transpeck Silox Indus. Ltd., against Advance Release Order (ARO) on the invalidation of Advance Licence issued to the said buyer. Such ARO enables the Appellants to import raw materials without payment of Customs duty. The department held the view that the Customs duty component should form part of assessable value since this amount flowed as additional consideration in the transaction between the buyer and the present appellants. The case was detected by DGCEI, Ahmedabad, and a show cause notice No. DGCEI/AZU/12(4)-60/2005-Pt-II, dt.14-8-05 by the Deputy Director. The No .....

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..... the period involved in the current case, decision of the lower appellate authority, namely the Tribunal was ruling the field. The Tribunal had held that "the benefit derived by the appellant under DEEC scheme cannot be considered to be an additional consideration towards the value flowing from the buyer." Therefore, in my opinion, the appellant's argument that they had acted "bona fide" on the basis of the decision of the Tribunal has to be accepted. As a result of this opinion, I hold that the Appellants had no intent to evade payment of duty. In the circumstances, longer period of limitation is not available to the department. It is worth noting here that DGCEI visited the premises of the Appellants only after taking note of the judgment .....

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..... from the above, the impugned order passed by Commissioner (Appeals) is contradictory. In Para 6.1 of his order, he has held that the demand in the present case is barred by time. However, surprisingly, in Para 10, he upheld the demand and extended the benefit in respect of penalty only. We note that there is no appeal by the Revenue against the findings of Commissioner (Appeals) in Para 6.1. As such, the Commissioner (Appeals) having himself held the demand to be time-barred, should not have upheld the confirmation of duty against the appellant. 5. We, accordingly, set aside the impugned order and allow the appeal with consequential relief to the appellant. Stay Petition as also appeal gets disposed off. (Pronounced in Court)
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