9911796707
TMI Blog2011 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... fter amortisation - But The show cause notice does not demonstrate any cost analysis to show how such inference was drawn to level charge - Show cause notice fails to provide basis for defence for which there is no scope to appreciate that the assessee had manipulated assessable value - Therefore, there is no scope to doubt ill motive of the assessee at all - Accordingly, there is also no scope to penalise the assessee in respect of the show cause notice issued for the period 1996-97 to 2000-2001 . Show cause notice for the period from April 2001 to August, 2002 - There shall be concessional penalty for the second period subject to fulfilment of the conditions in section 11AC read with the decision of Hon ble High Court of Delhi in K.P. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f undervaluation of assessable value. 3. Ld. Counsel appearing on behalf of appellant submitted that so far as the first show cause notice relating to the period 1996-97 to 2000-2001 is concerned, the demand in question proposed by show cause notice was discharged in two parts. First 50% was paid on 15.2.2000 and the rest of the amount was paid on 11.7.2000. The discharge so made was two years before issuance of the show cause notice (SCN issued on 5.3.2002). He categorically submitted that this amortisation issue was in debatable stage before various forums during different periods till that was resolved by Larger Bench in the case of Mutual Industries Ltd. vs. Collector of Central Excise, Mumbai reported in 2000 (117) ELT 578 (Tri.) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at page 3 thereof. Such a conclusion was drawn by the Department upon scrutiny of invoices. When the appellant was aware that the moulds were necessary for manufacture, cost thereof should have been included in the assessable value. But when the assessable value was deflated, revenue was prejudiced for which penalty is imposable. 7. Heard both sides and perused the records. 8. We have heard the matter in length yesterday. When the assessee came forward to discharge the tax liability soon after the audit was conducted by Department during the period 18th April 2000 to 20th April 2000 we required both sides to clarify whether the case shall fall under sub-section (2B) of section 11A of the Central Excise Act 1944. But today we were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2000 and partly on 11.7.2000 while first show cause notice was issued on 5.3.2002. But before show cause notice was issued, the assessee informed the Department about its intention on 11.6.2001. We appreciate ld. DR s contention that the cost aspect of the goods appears to the same before and after amortisation. But The show cause notice does not demonstrate any cost analysis to show how such inference was drawn to level charge. Show cause notice fails to provide basis for defence for which there is no scope to appreciate that the assessee had manipulated assessable value. Therefore, there is no scope to doubt ill motive of the assessee at all. Accordingly, there is also no scope to penalise the assessee in respect of the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... options available to the Assessee are mentioned in the adjudication order itself. Similar view as held in K.P. Pouches was also expressed in the case of Commissioner of Central Excise Customs vs. Rama Synsilk Mills P. Ltd. reported in 2010 (254) ELT 277 (Guj.) 12. On the aforesaid factual and legal premises, we have no hesitation to hold that the assessee is liable to penalty for the period April 2001 to August, 2002 while there shall be no penalty for the period 1995-96 to Dec. 1999. The assessee shall not be deprived of the benefit of concessional penalty in view of statutory provision enacted in dsection 11AC read with the judicial pronouncement made in K.P. Pouches case. Accordingly we hold that there shall be no penalty agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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