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TMI Blog2010 (7) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ) - Dated:- 16-7-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri J.P. Kaushik, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. This is an appeal against order-in-Appeal No. 144/CE/APPL/DLH-IV/2009 dated 27-10-09 passed by Commissioner (Appeals) by which the Commissioner (Appeals) dismissed the appeal filed by the Appellant against order-in-original No. 10/D-II/08 dated 20-6-08 passed by the Asstt. Commissioner, Central Excise Division-II, Faridabad by which a duty demand of Rs. 1,93,055/- had been confirmed against the Appellant alongwith interest under proviso to Section 11A(1) of Central Excise Act,1944 and penalty of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1,93,055/- on the tooling charges of Rs. 11,82,936/- recovered by them from their customers, alongwith interest on this duty at the applicable rate as per the provisions of Section 11AB of Central Excise Act,1944 and imposition of penalty on the Appellant under Section 11AC of Central Excise Act. The show cause notice sought the recovery of duty by invoking extended period under proviso to Section 11A(1) of Central Excise Act on the ground that the appellant had not disclosed to the Department the fact that they had charged an amount of Rs. 11,82,936/-, the non-inclusion of which in the assessable value resulted in short payment of Central Excise duty amounting to Rs. 1,93,055/-. The show cause notice was adjudicated by the Asstt. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant for non-payment of duty and hence longer limitation period is not available to the Department; that Tribunal in the case of Automotive Axles Ltd. v. CCE, Bangalore reported in 1995 (79) E.L.T. 275 has held that tooling and development charges collected in bulk for development of new products are not includible in the assessable value of the goods, unless they are attributable to any particular clearances, that the same view had been taken by the Hon ble Supreme Court in the case of International Auto Ltd. v. CCE, Bihar reported in 2005 (183) E.L.T. 239 (S.C.) wherein it was held by the Hon ble Supreme Court that the Appellants are not liable to pay duty on the inputs supplied by final product manufacturer since they had not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of tools, dies, moulds, drawings, blue prints, technical maps, charts and similar items, received from the customers free of charge or at reduced cost for manufacture of goods has to be added to the assessable value; and that since in this case, the Appellant did not include the value of the tools in the assessable value and did not pay any duty on the same; the duty demand on the value of the tools has been correctly upheld. He also pleaded that since the Appellant had never disclosed to the Department that the value of the tools had been fully recovered from the customers; the Appellants are guilty of suppressing this vital fact and hence, longer limitation period for recovery of short paid duty is invokable and for the same reason, pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly or indirectly from the buyer to the assessee in relation to sale of the goods being valued. One of the items of goods mentioned is supply of tools, dies, moulds, technical maps and charts and similar items used by the buyer free of charge or at reduced cost for use in production of goods. Since as discussed above, in this case tools valued at Rs. 11,82,936/- were supplied free of charge by M/s. JCB to the Appellant, in the sense that JCB had purchased these tools for use in the manufacture of P-92 cabins and charged this amount from M/s. JCB, the cost of these tools would have to be treated as additional consideration flowing to the appellant and hence the same would be includible in the assessable value. However, the cost included ..... X X X X Extracts X X X X X X X X Extracts X X X X
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